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Politics, Religion, Science, Culture and Humanities => Science, Culture, & Humanities => Topic started by: Crafty_Dog on April 14, 2009, 02:54:10 PM

Title: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on April 14, 2009, 02:54:10 PM
Video Link Here:

AUSTIN – Gov. Rick Perry today joined state Rep. Brandon Creighton and sponsors of House Concurrent Resolution (HCR) 50 in support of states’ rights under the 10th Amendment to the U.S. Constitution.

“I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state,” Gov. Perry said. “That is why I am here today to express my unwavering support for efforts all across our country to reaffirm the states’ rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union.”

A number of recent federal proposals are not within the scope of the federal government’s constitutionally designated powers and impede the states’ right to govern themselves. HCR 50 affirms that Texas claims sovereignty under the 10th Amendment over all powers not otherwise granted to the federal government.

It also designates that all compulsory federal legislation that requires states to comply under threat of civil or criminal penalties, or that requires states to pass legislation or lose federal funding, be prohibited or repealed.

HCR 50 is authored by Representatives Brandon Creighton, Leo Berman, Bryan Hughes, Dan Gattis and Ryan Guillen.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on April 21, 2009, 08:51:11 AM
Transnational strategies to eviscerate the Second Amendment via the UN:

With Harold Koh at the State Department this is going to get REALLY bad!
Title: The case for a federalism amendment
Post by: Crafty_Dog on April 23, 2009, 09:03:13 AM
In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."

Suffragettes celebrate the 19th Amendment, 1920.
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.

What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?

One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax. There is precedent for repealing an amendment. In 1933, the 21st Amendment repealed the 18th Amendment that had empowered Congress to prohibit the sale of alcohol.

Alternatively, to restore balance between federal and state power and better protect individual liberty, the repeal of the income tax amendment could be folded into a new "Federalism Amendment" like this:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.

Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not "commerce . . . among the several states," but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.

Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.

Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.

Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.

Could such a Federalism Amendment actually be adopted? Stranger things have happened -- including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people. And this Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution.

Mr. Barnett is a professor of constitutional law at Georgetown University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on April 27, 2009, 10:42:00 AM
"In response to an unprecedented expansion of federal power, citizens have held hundreds of 'tea party' rallies around the country, and various states are considering 'sovereignty resolutions' invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges 'the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.' While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution. An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel. ...[A] Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution."

--Georgetown University professor of constitutional law Randy Barnett

"It really is difficult to imagine how people who have entirely given up managing their own affairs could make a wise choice of those who are to do that for them. One should never expect a liberal, energetic, and wise government to originate in the votes of a people of servants." --French political thinker and historian Alexis de Tocqueville (1805-1859)


"One of the most important events of our lifetimes may have just transpired. A federal agency has decided that it has the power to regulate everything, including the air you breathe. Nominally, the Environmental Protection Agency's announcement ... only applies to new-car emissions. But pretty much everyone agrees that the ruling opens the door to regulating, well, everything. According to the EPA, greenhouse gases include carbon dioxide -- the gas you exhale -- as well as methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. It is literally impossible to imagine a significant economic or human activity that does not involve the production of one of these gases. Don't think just of the gas and electricity bills. Cow flatulence is a serious concern of the EPA's already. What next? ... Whether or not global warming is a crisis that warrants immediate, drastic action (I don't think it does), and whether or not such wholesale measures would be an economic calamity (they would be), the EPA's decision should be disturbing to people who believe in democratic, constitutional government. ...[T]he EPA has launched its power grab over all that burns, breathes, burps, flies, drives and passes gas."

--National Review editor Jonah Goldberg

Title: Goldwater
Post by: Crafty_Dog on May 05, 2009, 10:15:06 AM
"How did it happen? How did our national government grow from a servant with sharply limited powers into a master with virtually unlimited power? In part, we were swindled. There are occasions when we have elevated men and political parties to power that promised to restore limited government and then proceeded, after their election, to expand the activities of government. But let us be honest with ourselves. Broken promises are not the major causes of our trouble. Kept promises are. All too often we have put men in office who have suggested spending a little more on this, a little more on that, who have proposed a new welfare program, who have thought of another variety of 'security.' We have taken the bait, preferring to put off to another day the recapture of freedom and the restoration of our constitutional system. We have gone the way of many a democratic society that has lost its freedom by persuading itself that if 'the people' rule, all is well." --former Arizona senator Barry Goldwater (1909-1998)
Title: Charles Murray
Post by: Crafty_Dog on May 05, 2009, 10:18:34 AM
Cross referencing this excellent read here:
Title: Montana's 10th Amendment challenge
Post by: Crafty_Dog on May 07, 2009, 11:04:33 AM
The Second and Tenth Amendments
In what amounts to a serious Second and Tenth Amendment challenge to federal authority, the Montana Legislature passed and its Democrat governor signed a law which specifies that guns which are produced, sold and maintained within the state are exempt from federal regulations.

Essentially, Montana is setting up a Tenth Amendment challenge -- as soon as the first arrest is made for purchasing a gun without the user submitting to federal mandates such as background checks, licensing and registration, the state will assert its Tenth Amendment rights under our Constitution.

Other states are preparing similar legislation, but I would suggest one of them take the Tenth Amendment challenge a major step forward.

Let's see a state pass a law requiring that any and all federal authorities who wish to carry a firearm within the boundary of said state, must be in possession of a "right to carry" permit issued and authorized by that state's governor.

And speaking of "right to carry," in my home state of Tennessee, legislators are considering a bill to allow duly authorized carry permit holders to keep their weapons on their person in restaurants which serve alcohol (not to be confused with bars), similar to surrounding states.


The statists are protesting that doing so will undoubtedly lead to tragedy. However, one would be hard pressed to find any incident in any year when an authorized holder of a carry permit committed a felony with their weapon. By contrast, in the latest year of record, there were 13,470 fatalities involving alcohol-impaired drivers.

Now that is a tragedy. Perhaps they should not allow alcohol in bars...

Of course, this whole debate on federal versus state gun regulations and concealed carry permits is a straw man. Personally, my right-to-carry permit is the Second Amendment...
Title: BO shreds the Constitution
Post by: Crafty_Dog on May 11, 2009, 09:06:24 AM
"Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world." --U.S. Senator Daniel Webster (1782-1852)

Obama keeps shredding the Constitution

"Barack Obama's vision of America is one in which a President of the United States can fire the head of General Motors, tell banks how to bank, control the medical system and take charge of all sorts of other activities for which neither he nor other politicians have any expertise or experience. The Constitution of the United States gives no president, nor the entire federal government, the authority to do such things. But spending trillions of dollars to bail out all sorts of companies buys the power to tell them how to operate. Appointing judges to the federal courts -- including the Supreme Court -- who believe in expanding the powers of the federal government to make arbitrary decisions, choosing who will be winners and losers in the economy and in the society, is perfectly consistent with a vision of the world where self-confident and self-righteous elites rule according to their own notions, instead of merely governing under the restraints of the Constitution." --Hoover Institution economist Thomas Sowell

"Given how congressional leaders have abdicated their responsibilities, perhaps it's not surprising that the secured creditors who challenged the Obama-imposed Chrysler merger deal were too polite to note that the president lacks statutory authority to intervene in the car industry. 'Even assuming that TARP provides the Treasury Department with authority to provide funding to the Debtors,' they said, it is neither fair nor legal to let unsecured creditors such as the United Auto Workers get more of their money back than creditors who by statute have a superior claim. But for a president who tramples on the Constitution in his rush to save companies from the consequences of their own bad decisions, the bankruptcy code is no obstacle." --columnist Jacob Sullum

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on May 11, 2009, 10:05:54 AM
The truth in the Thomas Sowell quote of what is happening now is sickening.  We justify our accelerating ignorance of constitutional limits on federal power by pointing to a slippery slope tradition of all recent administration doing the same and court opinions in place that uphold most of it.  We can expand the powers of the federal government simply because of a 53% majority that for the most part didn't know what the were voting for or against.  It used to take a grueling, nationwide amendment process to do that.
Title: Feds taking over all water?
Post by: Crafty_Dog on June 01, 2009, 08:53:39 PM
By Jack Hoogendyk
Guest Opinion

Michigan, through its Department of Environmental Quality (DEQ) is one of only two states in the union that regulates wetlands with a state agency rather than through the U.S. Army Corps of Engineers.

This has been a problem, because the state guidelines are much more strict than the federal guidelines. Additionally, the DEQ has proven to be arbitrary and capricious in its decision making and has often caused long, unnecessary delays in approving permits.

While the concerns about over-regulation by a state agency are valid, they may be rendered moot by recent efforts in Congress.

U.S. Sen. Russ Feingold has introduced a bill with 23 sponsors including Senators Carl Levin and Debbie Stabenow.

Senate Bill S787 is titled, “To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.”

Notice they start the description with the words “pollution control.” That makes it sound caring and good, doesn’t it?

The fact is, this legislation will put ALL surface waters in the United States of America under congressional jurisdiction.

The bill language has a couple of key phrases in it. The first changes the definition of what is under congressional jurisdiction. Ever since the Commerce Clause of the Constitution and several test cases in the Supreme Court, Congress has had jurisdiction over navigable waters. The meaning of that word has been argued, but according to precedent and legal definition, navigable includes anything you can get a canoe down, or anything that is connected by water to the same.

No matter, because under S787, the word navigable is stricken, which means now ALL surface water is under congressional jurisdiction.

 Additionally, in case there were any question of state’s rights, the bill also states that this applies to interstate and intrastate waters. That means there is no state sovereignty over waters within that state’s boundaries.

And, if you have any doubt as to what the congressional definition of “waters” is, they spell that out, too. It includes, “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”

The bottom line is this: Congress is taking over all the water.

If the Obama administration and Congress are anything like this state’s governor and her administration, you will see free trade and commerce come to a virtual standstill. Manufacturing, especially, will come to a screeching halt.

Water is an essential resource in the manufacture of virtually any consumable or durable good. Without ready access, manufacturers will be stifled in their attempts to create new products for market and the jobs that go with them.

Jack Hoogendyk is a former state legislator and executive director of CIVPRO, a nonprofit property rights organization based in Michigan

Now mind you Michigans DEQ water quality standards are much stricter than the EPA . So this isn't about pollution this is about controll over the states and manufacturing.Also this will then enable the feds to start draining the great lakes and pumping the water else where which every Michigander is opposed to except the sellout obamites levin and stabenow.

Title: The stictch in time that saved the nine
Post by: Crafty_Dog on June 06, 2009, 06:03:42 AM
I wish he had mentioned the role of FDR's court-packing scheme in all of this:


The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.

The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.

It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.

The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

The absence of meaningful constitutional limits on the power of government over property and the economy has had consequences that should cause both liberals and conservatives to rethink the wisdom of sweeping judicial deference. For example, last fall Congress enacted the Troubled Asset Relief Program, putting hundreds of billions of dollars at the personal discretion of the secretary of the Treasury. This grant of authority -- which violates the basic constitutional duty of Congress to control the purse laid out in Article I, Section 8 -- transformed the secretary into the most powerful unelected official in American history. Such power, once acquired, is rarely relinquished.

None of this would have been thinkable, much less possible, without the longstanding refusal of the Supreme Court to enforce clear constitutional boundaries on the elected branches.

In another example, America has become a patchwork quilt of laws serving special interests because courts refuse to protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four (according to recent research of Morris Kleiner published by the National Bureau of Economic Research), and the clamor by industry groups for more licensing grows unabated.

Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the "privileges or immunities" clause of the 14th Amendment.

Bad government is usually the result of runaway government. And runaway government is usually the result of government exceeding its constitutional prerogatives. Because they have a far stronger stake in the integrity of checks and balances on government power than in the culture war, conservatives and liberals should declare a truce over "activism" and reflect on the need to take the whole Constitution seriously.

Judges should be neither active nor passive, neither aggressive nor deferential. In a word, they should be engaged -- engaged in protecting constitutional rights to property and economic liberty, because these areas of the law have the most impact on our daily lives.

Mr. Rowes is an attorney at the Institute for Justice in Arlington, Va.

Title: AZ fights subsidies of private sector
Post by: Crafty_Dog on June 06, 2009, 06:23:57 AM

By any reading of the man, George W.P. Hunt -- Arizona's first governor -- was a progressive Democrat. He favored creating an income tax, extending the right to vote to women, and passing compulsory education laws. But when it came to drafting a constitution that would bring Arizona into the union as the 48th state, "Old Walrus," as he was called for his weight of about 300 lbs and his handlebar mustache, presided over a convention in 1910 that banned nearly all government subsidies to private business.

Hunt would probably be amazed at what's happening in Arizona today, as the old battles are once again being fought -- this time in the state Supreme Court, which is taking up a lawsuit to determine whether cities can give subsidies to private companies.

Arizona's founders banned gifts to private companies as the result of bitter experience. In the closing decades of the 19th century, local governments borrowed money to force-feed private railroad development. Pima County outside of Tucson, for example, took out $300,000 in bonds in 1882 for a railroad that promised to build some 100 miles of track. The money was spent but the railroad dissolved after a mere 10 miles of track was constructed. The bonds were worthless, but taxpayers were still on the hook for the money.

This time around it's shopping malls and the like, and the preferred subsidy is tax rebates rather than bonds. But the result is the same. Local governments are foisting the cost of private development onto taxpayers as private companies promise that with just a few tax dollars they will create a wealth of new jobs.

People aren't buying it, and there's a revolt underway against government subsidized megaprojects. In November, voters elected mayors in Mesa, Scottsdale and Tempe who promised to fight taxpayer subsidies. In Phoenix, voters have elected three candidates to the city council who oppose wooing developers with taxpayer money. And it is in Phoenix where the biggest fight is taking place.

Two years ago, the city signed a contract with developer Thomas J. Klutznick, who is building an outdoor mall. The city has to rebate to him $97.4 million in sales taxes over the next 11 years, in return for which it gets 200 parking spaces for commuters catching a municipal bus. The mall, called CityNorth, will be home to an Ann Taylor Loft and other retailers, as well as residential apartments that are already being rented. Arizona Republic columnist Laurie Roberts summed up the deal earlier this year by noting the city will spend about $487,000 for each commuter parking spot. "Wouldn't it be cheaper to just chopper them in to work?" she wrote.

Nonetheless, CityNorth is the kind of project that city planners dream about as they seek to remake urban landscapes -- grand in scale as it stretches 144 acres, and grand in impact as it serves tens of thousands of residents and shoppers. City officials promise it will create a "second downtown" for Phoenix.

That second downtown will be at the expense of employers who are lured away from other cities, and give companies in the new mall a tax advantage over business outside of it. That's hardly fair, so the Goldwater Institute, a free-market think tank in Phoenix that I run, sued Phoenix Mayor Phil Gordon in state court on behalf of Meyer Turken, who owns a real estate company, and five business owners. The suit seeks to enforce the provision in Old Walrus's constitution that bans government handouts. The provision is known as the "Gift Clause."

We lost the first round in the case, but two days before Christmas last year the Arizona Court of Appeals unanimously reversed the lower court ruling and said, "We think these payments are exactly what the Gift Clause was intended to prohibit." Phoenix then took Turken v. Gordon to the state Supreme Court, which this week agreed to hear the case.

Cities across Arizona are waiting to see what the court does. This has become a fight over just how involved in the economy government should be allowed to get -- whether local and state governments should be in the business of bolstering some, but not others, with tax breaks.

Government-sponsored development isn't popular. Public Opinion Strategies polling found earlier this year that 80% of Phoenix taxpayers oppose their city's subsidies for CityNorth and agree that the developer and the retailers who move into the new mall "should pay their own way." The subsidy is also attracting opposition outside of Phoenix. Last week, Mayor W.J. Lane of neighboring Scottsdale won support from his city council to file a friend-of-the-court brief in support of our lawsuit.

New York, Maryland and 34 other states have gift clauses similar to Arizona's. Thus, Arizona's legal precedent could influence how local and state governments approach redevelopment across the country. On the federal level, any member of Congress upset with the bailouts of the auto or financial industries might want to consider proposing a Gift Clause amendment to the U.S. Constitution that would explicitly ban bailouts that benefit one company or industry.

When asked about the lawsuit, Phoenix Deputy City Manager David Krietor told a reporter that "This is a landmark case that will dramatically impact our ability to do economic development." He's right. But Mr. Krietor should be considering whether it's right for the government to "do" this at all. As his Democratic progressives came to understand in Old Walrus's day, government payouts to private businesses don't always pay off -- and often it's taxpayers who end up having to pay up.

Ms. Olsen is president & CEO of the Goldwater Institute of Phoenix, Ariz., which is litigating Turken v. Gordon.
Title: SC SCT forces Gov to take Fed money :-(
Post by: Crafty_Dog on June 06, 2009, 06:36:02 AM
second post of the morning:


S.C. Supreme Court Says Gov. Sanford Must Take Stimulus Cash
The long-running debate between the Republican governor of South Carolina, Mark Sanford, and the Republican-controlled state legislature came to an unfortunate conclusion Thursday as the state's Supreme Court ruled that Gov. Sanford must request the $700 billion in federal funding he had thus far refused. Sanford had argued that taking the money now would mean more debt later as the services continued but federal funds were gone. He wanted instead to pay down the state's debt with the money, if he had to take it at all. The Republicans in the legislature, however, stole a page from the Democrats' playbook and accused the governor of cheating schools out of money. After all, it's always a losing proposition to try to hold education spending steady, much less cut it, because not enough people see that as education spending has gone through the roof over the last 40 years, the quality of education has gone down. Regardless, Sanford will not appeal the decision but lamented the missed chance to show other states "a different way than simply taking this money and spending it."
Title: Aristotle
Post by: Crafty_Dog on June 06, 2009, 03:47:16 PM
Third post of the day:

I began read a book today (author's name is East Euro so I fear to assay spelling it from memory) and he referenced Aristotle's concept of man pursuing happiness.

Now where have we heard that phrase before?

Does anyone have any input on the Aristotlean concept and its influence on our Founding Fathers?
Title: Re: Aristotle
Post by: rachelg on June 07, 2009, 06:18:39 AM
Third post of the day:

I began read a book today (author's name is East Euro so I fear to assay spelling it from memory) and he referenced Aristotle's concept of man pursuing happiness.

Now where have we heard that phrase before?

Does anyone have any input on the Aristotlean concept and its influence on our Founding Fathers?

Men are what they are because their characters, but it is in action that they find happiness or the reverse.” --Aristotle

I  read it in 1998  so I wouldn't currently  be able to contribute to a discussion on it but Nicomachean Ethics by  Aristotle probably contains the ideas you are looking for.

You should start a book club  :-D

You might find these helpful

1.   The translation of "eudaimonia" should be compatible not only with Aristotle's theory but also (at first blush) with theories which identify eudaimonia with a life of pleasant amusements, a life devoted to the acquisition of wealth, a life devoted to the pursuit of honor, a life of public service in which one exercises civic virtues, and so on.  The translation should make plausible the claims which Aristotle says everyone accepts about eudaimonia:  that it is that for the sake of which a human being does everything that they do, that it is not pursued for the sake of some further goal, that the life of someone who is eudaimon is a pleasant life, etc.

2.  "Eudaimonia" in Greek - Literally 'having a good guardian spirit', the Greek term "eudaimonia" has a much more objective meaning. To be eudaimon is to be successful, to have what is most desirable, to flourish. There is some disagreement about what sort of life is most flourishing. Some say it is a life of pleasure, others of honor, some a wealthy life, others a virtuous one.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on June 07, 2009, 06:42:33 AM
Thank you Rachel.  You are quite a well-read woman!!!

Of the two entries I liked a bit more.
Title: The second and the fourteenth
Post by: Crafty_Dog on June 08, 2009, 06:26:13 AM
Pasted here from the Legal Issues thread on P&R forum:

June 08, 2009, 4:00 a.m.

Bill of Rights, Inc.
Could a Second Amendment case establish Fourteenth Amendment originalism?

By Will Haun

The Seventh Circuit Court of Appeals recently decided McDonald v. City of Chicago, a challenge to Chicago’s gun ban. The case has major implications for protecting gun rights at the state level, but its importance goes further than that. Depending on what the Supreme Court does, it could make originalism — relying on the text of the Constitution and its amendments as they were understood when enacted — the accepted standard for interpreting the Bill of Rights, rather than the whims of a handful of justices.

The plaintiff’s case in McDonald is based on the Second Amendment, but also on the Fourteenth. Last year, in Heller v. District of Columbia, the Supreme Court ruled that the Second Amendment protects an individual’s right to own firearms against infringement by the federal government. But can a state or local government infringe that right? This question hinges on the constitutional principle of “incorporation” — the notion that the Fourteenth Amendment makes the states subject to the Bill of Rights.

When it was enacted in 1791, the Bill of Rights applied to the federal government only. Individual states could (and did) restrict free speech, for example, or have an established church. The states were beholden only to their own laws and constitutions and to certain provisions in Article I of the U.S. Constitution. After the Civil War, as Justice Clarence Thomas wrote in Zelman v. Simmons-Harris (2002), “the Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law.” But what “liberty” was included in this guarantee, and what was meant by “due process”?

The full text of the first section of the Fourteenth Amendment reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Ringing phrases, to be sure, but somewhat short on specifics. In fact, the meaning of every major clause in the first section is disputed, and has been since the amendment’s enactment in 1868.

Case law provides little clarity. The first major Supreme Court decision to grapple with these questions came in the Slaughterhouse cases of 1873, but — to quote Justice Thomas again, this time from his dissent in Saenz v. Roe (1999) — that decision “all but read the Privileges or Immunities Clause out of the Constitution.”  By adopting a narrow interpretation of the clause, the Court gave states wide latitude to enact laws they thought were necessary.

Towards the end of the 19th century, however, as various reform movements took hold, restrictive state laws came to be seen as an obstacle to progress.  So the justices eventually concluded, as Prof. James W. Ely of Vanderbilt Law School notes, “that the Fourteenth Amendment did confer a national standard of rights against the states.” But instead of reviving the “privileges or immunities” clause to enforce this standard (and thus reversing Slaughterhouse), they seized upon the “due process” clause.

That clause may simply seem to restate the Fifth Amendment requirement guaranteeing an individual’s right to a day in court and the protections of the legal process, this time applying it to the states as well as the federal government. That’s the way many modern originalists understand the clause. But as reform took hold, courts began interpreting it to mean that states had no power to deprive citizens of important rights, whether or not those rights were mentioned in the Constitution. The judges themselves would decide what rights fell under the clause’s protection. They called this doctrine “substantive due process” to distinguish it from the traditional day-in-court meaning, which came to be called “procedural due process.”

At first, substantive due process was used mostly to reverse state encroachments on economic choices, like freedom of contract. If a baker wanted to work 70 or 80 hours a week, no one could stop him. But as the doctrine evolved, justices used it to incorporate selective provisions of the Bill of Rights, making them enforceable against state governments (the Second Amendment, among other provisions, was excluded for various reasons).  And as the 20th century wore on, these two trends diverged: Economic regulation became popular among the progressives on the Court, while regulation of individuals’ “private” conduct became even less so. The justices modified the doctrine to fit their new preferences.

The result, Ely notes, was to create “an artificial division between economic rights, which the pro–New Deal court wanted to reject, and personal rights, which they wanted to expand to mean virtually anything.” Since the 1940s, the concept of substantive due process has been greatly expanded by the Court, not just to protect the Bill of Rights from abridgment by state action, but to create rights to privacy and abortion, a “wall of separation” between church and state, and many other inventions of the Warren and Berger Courts.

Many originalists, such as David Forte, co-editor of The Heritage Guide to the Constitution, have rightly argued that “due process was never meant to have a substantive meaning,” but merely a judicial one. This argument provides the basis for many conservatives and originalists to stand against the whole principle of incorporation. In a strict interpretation of this view, Chicago is entitled to restrict gun rights, since the Second Amendment (and the rest of the Bill of Rights) does not apply to it.

To parry this objection, the briefs in McDonald that argue for incorporation rely on recent scholarship that justifies incorporation on originalist grounds. Prof. Michael Kent Curtis, of Wake Forest School of Law, who worked on an amicus brief in McDonald, used the broad text of the Fourteenth Amendment, statements made in the 39th Congress (which passed the amendment), and the legal theories of its sponsors to conclude in his 1990 book No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights that incorporation through the “privileges or immunities” clause was part of the amendment’s intent.

Other originalists, such as Jim Bond, professor emeritus at Seattle University School of Law, have questioned how widespread the agreement on incorporation was, especially in the southern-state ratifying conventions that meticulously reviewed the amendment before passing it. But there is still good reason to believe, as Forte says, that some “federal package of rights is protected by the privileges or immunities clause.”

Exactly what rights are included in that package is unclear, but the connection of incorporation with the “privileges or immunities” clause provides another weapon for civil-liberties lawyers. That explains why both the progressive Constitutional Accountability Center (a “living Constitution” advocate) and the libertarian Institute for Justice filed amicus briefs in McDonald v. Chicago in favor of incorporating the Second Amendment. In a case of politics making strange bedfellows, the amicus briefs put those two groups on the same side as the National Rifle Association, which is co-plaintiff with McDonald.

In a decision delivered earlier this week, the Seventh Circuit upheld Chicago’s ban on firearms, but the decision left the merits of incorporation through the “privileges or immunities” clause to the Supreme Court. Alan Gura, arguing on behalf of the NRA and McDonald, anticipated this; he noted in oral arguments that his side intends to “preserve this argument for the upper [Supreme] Court.” (Gura was also the lawyer for the plaintiff in Heller v. D.C.)

Assuming the Supreme Court agrees to review McDonald, its decision could send shock waves through constitutional law. If the “privileges or immunities” clause becomes the new justification for incorporating the Bill of Rights into state law, the days of “substantive due process,” and all the judicial overreaching it has brought, could be numbered. Still, the fact that some liberals support this interpretation is worrisome. Would it merely substitute a new all-purpose tool for legislating from the bench in place of the old one?

Not necessarily. Basing decisions on the text-based “privileges or immunities” clause, rather than the judge-created doctrine of “substantive due process,” would naturally lend itself to the increased use of originalist analysis of the Fourteenth Amendment. The focus of inquiry would be, in Forte’s words, “what could have been reasonably understood to be the ‘Privileges or Immunities’ of Federal Citizenship by the amendment’s framers” — limiting the ability of future justices to “find” new “rights” protected by it. So no matter how the incorporation debate shakes out, an endorsement of originalism would be a victory for conservatives who prize intellectual honesty in constitutional interpretation.

Seemingly aware of these implications, the Left is trying to preserve the contrivances of “substantive due process” in an originalist guise. They want to define “privileges” and “immunities” as broadly as possible, to include what Doug Kendall of the Constitutional Accountability Center calls “very important progressive values,” such as abortion rights and same-sex marriage. The goal is to continue expanding “individual rights” while permitting restriction of property rights and economic freedoms.  So if the Supreme Court decides in McDonald’s favor, it could end the controversy over gun rights but begin a host of new battles in other areas.

Yet Robert Levy, chairman of the Cato Institute, is not afraid of opening a can of worms. He says that libertarians see McDonald as an opportunity “to resurrect economic liberties suspended by the Court under the post–New Deal version of substantive due process.” Conservatives should see this case as a rare opportunity to base any incorporation of the Bill of Rights on originalist grounds — an opportunity they should waste no time in seizing, for it may not come again.

— Will Haun is a recent graduate of American University and is policy chairman of the Young Conservative Coalition. He is interning at the Heritage Foundation’s Center for Legal and Judicial Studies this summer before beginning law school at Catholic University this fall.

National Review Online -
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: rachelg on June 10, 2009, 08:03:01 PM

Thank you!

I don't think I am well read yet but I intend to be.   However, I don't think it counts if you don't remember what you read or didn't really understand it the first place both are true for Aristotle
Title: Rights are from the Creator
Post by: Crafty_Dog on June 14, 2009, 08:06:38 PM
Alabama 1901, Preamble
We the people of the State of Alabama , invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution..

Alaska 1956, Preamble We, the people of Alaska , grateful to God and to those who founded our nation and pioneered this great land.

Arizona 1911, Preamble We, the people of the State of Arizona , grateful to Almighty God for our liberties, do ordain this Constitution...

Arkansas 1874, Preamble We, the people of the State of Arkansas , grateful to Almighty God for the privilege of choosing our own form of government...

California 1879, Preamble We, the People of the State of California , grateful to Almighty God for our freedom...

Colorado 1876, Preamble We, the people of Colorado , with profound reverence for the Supreme Ruler of Universe...

Connecticut 1818, Preamble. The People of Connecticut, acknowledging with gratitude the good Providence of God in permitting them to enjoy.

Delaware 1897, Preamble Through Divine Goodness all men have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences...

Florida 1885, Preamble We, the people of the State of Florida , grateful to Almighty God for our constitutional liberty, establish this Constitution...

Georgia 1777, Preamble We, the people of Georgia , relying upon protection and guidance of Almighty God, do ordain and establish this Constitution...

Hawaii 1959, Preamble We , the people of Hawaii , Grateful for Divine Guidance ... Establish this Constitution.

Idaho 1889, Preamble We, the people of the State of Idaho , grateful to Almighty God for our freedom, to secure its blessings.

Illinois 1870, Preamble We, the people of the State of Illinois, grateful to Almighty God for the civil , political and religious liberty which He hath so long permitted us to enjoy and looking to Him for a blessing on our endeavors.

Indiana 1851, Preamble We, the People of the State of Indiana , grateful to Almighty God for the free exercise of the right to choose our form of government.

Iowa 1857, Preamble We, the People of the St ate of Iowa , grateful to the Supreme Being for the blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of these blessings, establish this Constitution.

Kansas 1859, Preamble We, the people of Kansas , grateful to Almighty God for our civil and religious privileges establish this Constitution.

Kentucky 1891, Preamble.. We, the people of the Commonwealth are grateful to Almighty God for the civil, political and religious liberties..

Louisiana 1921, Preamble We, the people of the State of Louisiana , grateful to Almighty God for the civil, political and religious liberties we enjoy.

Maine 1820, Preamble We the People of Maine acknowledging with grateful hearts the goodness of the Sovereign Ruler of the Universe in affording us an opportunity .. And imploring His aid and direction.

Maryland 1776, Preamble We, the people of the state of Maryland , grateful to Almighty God for our civil and religious liberty...

Massachusetts 1780, Preamble We...the people of Massachusetts, acknowledging with grateful hearts, the goodness of the Great Legislator of the Universe In the course of His Providence, an opportunity and devoutly imploring His direction

Michigan 1908, Preamble. We, the people of the State of Michigan , grateful to Almighty God for the blessings of freedom, establish this Constitution.

Minnesota, 1857, Preamble We, the people of the State of Minnesota, grateful to God for our civil and religious liberty, and desiring to perpetuate its blessings:

Mississippi 1890, Preamble We, the people of Mississippi in convention assembled, grateful to Almighty God, and invoking His blessing on our work.

Missouri 1845, Preamble We, the people of Missouri , with profound reverence for the Supreme Ruler of the Universe, and grateful for His goodness . Establish this Constitution...

Montana 1889, Preamble. We, the people of Montana , grateful to Almighty God for the blessings of liberty establish this Constitution ...

Nebraska 1875, Preamble We, the people, grateful to Almighty God for our freedom . Establish this Constitution.

Nevada 1864, Preamble We the people of the State of Nevada , grateful to Almighty God for our freedom, establish this Constitution...

New Hampshire 1792, Part I. Art. I. Sec. V Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience.

New Jersey 1844, Preamble We, the people of the State of New Jersey, grateful to Almighty God for civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing on our endeavors.

New Mexico 1911, Preamble We, the People of New Mexico, grateful to Almighty God for the blessings of liberty..

New York 1846, Preamble We, the people of the State of New York , grateful to Almighty God for our freedom, in order to secure its blessings.

North Carolina 1868, Preamble We the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for our civil, political, and religious liberties, and acknowledging our dependence upon Him for the continuance of those...

North Dakota 1889, Preamble We , the people of North Dakota , grateful to Almighty God for the blessings of civil and religious liberty, do ordain...

Ohio 1852, Preamble We the people of the state of Ohio , grateful to Almighty God for our freedom, to secure its blessings and to promote our common.

Oklahoma 1907, Preamble Invoking the guidance of Almighty God, in order to secure and perpetuate the blessings of liberty, establish this

Oregon 1857, Bill of Rights, Article I Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their consciences

Pennsylvania 1776, Preamble We, the people of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance....

Rhode Island 1842, Preamble. We the People of the State of Rhode Island grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing...

South Carolina , 1778, Preamble We, the people of he State of South Carolina grateful to God for our liberties, do ordain and establish this Constitution.

South Dakota 1889, Preamble We, the people of South Dakota , grateful to Almighty God for our civil and religious liberties ...

Tennessee 1796, Art. XI..III. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their conscience...

Texas 1845, Preamble We the People of the Republic of Texas , acknowledging, with gratitude, the grace and beneficence of God.

Utah 1896, Preamble Grateful to Almighty God for life and liberty, we establish this Constitution.
Vermont 1777, Preamble Whereas all government ought to enable the individuals who compose it to enjoy their natural rights, and other blessings which the Author of Existence has bestowed on man ..

Virginia 1776, Bill of Rights, XVI Religion, or the Duty which we owe our Creator can be directed only by Reason and that it is the mutual duty of all to practice Christian Forbearance, Love and Charity towards each other

Washington 1889, Preamble We the People of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this Constitution

West Virginia 1872, Preamble Since through Divine Providence we enjoy the blessings of civil, political and religious liberty, we, the people of West Virginia reaffirm our faith in and constant reliance upon God ....

Wisconsin 1848, Preamble We, the people of Wisconsin , grateful to Almighty God for our freedom, domestic tranquility...

Wyoming 1890, Preamble We, the people of the State of Wyoming , grateful to God for our civil, political, and religious liberties, establish this Constitution...
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 15, 2009, 10:02:32 PM
Looks to me like 49 states derive individual rights from the Creator.  Missing from the list: Vermont, District of Columbia and one poster here who believes the right of a store in suburban Paris to sell products of their own choosing, free from disruption, is derived from LA County and the 9th Circuit, not from the Creator.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on June 16, 2009, 04:57:01 AM
Title: Incorp'g the 2d via Citizenship clause?
Post by: Crafty_Dog on June 18, 2009, 01:37:44 PM
Hat tip to BBG:

Will Second Amendment Be Incorporated Through Citizenship Clause?
Posted Jun 17, 2009, 06:49 am CDT   
By Debra Cassens Weiss

Federal appeals courts hearing gun rights cases after the Supreme Court’s Second Amendment ruling last year in District of Columbia v. Heller are confronting an old issue: whether the amendment applies to restrict state and local laws under the incorporation doctrine.

Heller found that the Second Amendment protected an individual right to own a gun in the District of Columbia, a federal enclave. New suits challenging state and local laws have resulted in a split. Two federal appeals courts refused to apply the Second Amendment to local laws without express Supreme Court authorization. A third disagreed.

University of Texas law professor Sanford Levinson told the New York Times that the case could present a dilemma for some conservative justices who scoffed at incorporation arguments in the past. Because of the touchy issues, he says he would be surprised if the U.S. Supreme Court agrees to hear new cases on the issue.

Yale law professor Akhil Reed Amar told the Times that incorporation fell out of favor after the 1960s, but it’s being resurrected by liberal scholars. Most of the Bill of Rights have been applied to the states under liberal Warren Court rulings that found the 14th Amendment required incorporation. One exception is the Seventh Amendment right to a jury trial, which has not been applied to the states.

“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Amar told the Times. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”

He believes the justices will support incorporation. A post at the Volokh Conspiracy after the Heller ruling cited evidence that Justice Antonin Scalia may be on board.

Scalia’s Heller opinion highlights the importance to the newly freed slaves of the right to keep and bear arms in the home—the kind of evidence used to support incorporation. One Scalia passage hints that he believes the amendment could be incorporated through the 14th Amendment’s citizenship clause, rather than due process safeguards, says the Volokh Conspiracy writer, University of Minnesota law professor Dale Carpenter.
Title: Govt health care violates 9th?
Post by: Crafty_Dog on June 22, 2009, 06:10:37 AM
Is a government-dominated health-care system unconstitutional? A strong case can be made for that proposition, based on the same "right to privacy" that underlies such landmark Supreme Court decisions as Roe v. Wade.

The details of this year's health-care reform bill are still being hammered out. But the end result is sure to be byzantine in complexity. Washington will have immense say over how, when and through whom Americans are treated. Moreover, despite the administration's public pronouncements about painless cuts in wasteful spending, only the most credulous believe that some form of government-directed health-care rationing can be avoided as a means of controlling costs.

The Supreme Court created the right to privacy in the 1960s and used it to strike down a series of state and federal regulations of personal (mostly sexual) conduct. This line of cases began with Griswold v. Connecticut in 1965 (involving marital birth control), and includes the 1973 Roe v. Wade decision legalizing abortion.

The court's underlying rationale was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), "these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life."

It is, of course, difficult to imagine choices more "central to personal dignity and autonomy" than measures to be taken for the prevention and treatment of disease -- measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be "necessary" by an expectant mother and her physician.

If the government cannot proscribe -- or even "unduly burden," to use another of the Supreme Court's analytical frameworks -- access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?

This type of "burden" analysis will be especially problematic for a national health system because, in the health area, proper care often depends upon an individual's unique physical and even genetic history and characteristics. One size clearly does not fit all, but that is the very essence of governmental regulation -- to impose a regularity (if not uniformity) in the application of governmental power and the dispersal of its largess. Taking key decisions away from patient and physician, or otherwise limiting their available choices, will render any new system constitutionally vulnerable.

It is true, of course, that forms of rationing already exist in our current system. No one who has experienced the marked reluctance to treat aggressively lethal illnesses in the elderly can doubt that. However, what may be permissible for private actors -- including doctors and insurance companies -- is not necessarily lawful when done by the government.

Obviously, the government does not have to pay for any and all services individual citizens may desire. And simply refusing to approve a procedure or treatment under applicable reimbursement rules, as under the government-run Medicare and Medicaid, does not make the system unconstitutional. But if over time, as many critics fear, a "public option" health insurance plan turns into what amounts to a single-payer system, the constitutional issues regarding treatment and reimbursement decisions will be manifold.

The same will be true of a quasi-private system where the government claims a large role in defining acceptable health-insurance coverage and treatments. There will be all sorts of "undue burdens" on the rights of patients to receive the care they may want. Then the litigation will begin.

Anyone who imagines that Congress can simply avoid the constitutional issues -- and lawsuits -- by withdrawing federal court jurisdiction over the new health system must think again. A brief review of the Supreme Court's recent war-on-terror decisions, brought by or on behalf of detained enemy combatants, will disabuse that notion. This area of governmental authority was once nearly immune from judicial intervention. Over the past five years, however, the Supreme Court (supposedly the nonpolitical branch) has unapologetically transformed itself into a full-fledged, policy-making partner with the president and Congress.

In the process, the justices blew past specific congressional efforts to limit their jurisdiction and involvement like a hot rod in the desert. Questions of basic constitutionality (however the court may define them) cannot now be shielded from judicial review.

It is, of course, impossible to predict how and when the courts will ultimately rule on the new health system. Much depends on the details and the extent to which reasonable and practical private alternatives to the national plan remain. In crafting the law, however, its White House and congressional sponsors must keep privacy -- that near absolute right to personal autonomy they have so often praised and promoted -- squarely before them. The only thing that is certain today is that the courts, and not Congress, will have the last word.

Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush.
Title: We still hold these truths , , ,
Post by: Crafty_Dog on July 02, 2009, 09:52:48 AM
Independence Day 2009: We still hold these truths...
"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God. I know not what course others may take, but as for me, give me liberty or give me death!" --Patrick Henry

As we celebrate the 233rd year of our Declaration of Independence, let us look at the common parlance associated with the polar spectrum of current political ideology (while such a review is still permitted by the state), and explore what is meant by "Left versus Right," "Liberal versus Conservative" and "Tyranny versus Liberty"?

Tyranny v. Liberty (poster available at PatriotShop.US)

First, a little history.

On July 4th of 1776, our Founders, assembled as representatives to the Second Continental Congress, issued a declaration stating most notably: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. ... That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."

In other words, our Founders affirmed that our rights, which are inherent by Natural Law as provided by our Creator, can't be arbitrarily alienated by men like England's King George III, who believed that the rights of men are the gifts of government.

Our Founders publicly declared their intentions to defend these rights by attaching their signatures between July 4th and August 2nd of 1776 to the Declaration. They and their fellow Patriots pledged their lives, their fortunes, and their sacred honor as they set about to defend the Natural Rights of man.

At the conclusion of the American War for Independence in 1783, our Founders determined the new nation needed a more suitable alliance among the states than the Articles of Confederation. After much deliberation, they proposed the U.S. Constitution, adopted in 1787, ratified in 1788 and implemented in 1789 as subordinate guidance to our Declaration of Independence.

Since that time, generations of American Patriots have laid down their lives "to support and defend" our Constitution -- and I would note here that their sacred oath says nothing about a so-called "Living Constitution" as advocated by the political left.

Given that bit of history as a backdrop, consider the lexicography of our current political ideology.

On the dark side of the spectrum would be Leftists, liberals and tyrants.

(Sidebar: One should not confuse "classical liberalism" with "contemporary liberalism." The former refers to those, like Thomas Jefferson, who advocated individual liberty, while the latter refers to those, like Barack Hussein Obama, who advocate statism, which is the antithesis of liberty.)

Statism, as promoted by contemporary American liberals, has as its objective the establishment of a central government authorized as the arbiter of all that is "good" for "the people" -- and conferring upon the State ultimate control over the most significant social manifestation of individual rights, economic enterprise.

On the left, all associations between individuals ultimately augment the power and control of the State. The final expression and inevitable terminus of such power and control, if allowed to progress unabated, is tyranny.

The word "tyranny" is derived from the Latin "tyrannus," which translates to "illegitimate ruler."

Liberals, then, endeavor to undermine our nation's founding principles in order to achieve their statist objectives. However, politicians who have taken an oath to "support and defend" our Constitution, but then govern in clear defiance of that oath, are nothing more than illegitimate rulers, tyrants.

(Sidebar: Some Leftists contend that Communism and Fascism are at opposite ends of the political spectrum. Properly understood, however, both of these forms of government are on the left, because both have as a common end the establishment of an omnipotent state led by a dictator.)

Over on the "right wing" of the political spectrum, where the light of truth shines, would be "conservatives," from the Latin verb "conservare," meaning to preserve, protect and defend -- in this case, our Constitution.

American conservatives are those who seek to conserve our nation's First Principles, those who advocate for individual liberty, constitutional limits on government and the judiciary, and the promotion of free enterprise, strong national defense and traditional American values.

Contemporary political ideology is thus defined by tyrannus and conservare occupying the Left and Right ends of the American political spectrum, defining the difference between liberals and conservatives.

Though there are many devoted protagonists at both ends of this scale, the space in between is littered with those who, though they identify with one side or the other, are not able to articulate the foundation of that identity. That is to say, they are not rooted in liberal or conservative doctrine, but motivated by contemporaneous political causes associated with the Left or Right. These individuals do not describe themselves as "liberal" or "conservative" but as Democrat or Republican. Further, they tend to elect ideologically ambivalent politicians who are most adept at cultivating special interest constituencies.

That having been said, however, there is a major difference between those on the Left and the Right, as demonstrated by our most recent national elections. Those on the Left tend to form a more unified front for the purpose of electability; they tend to embrace a "win at all costs" philosophy, while those on the right tend to spend valuable political capital drawing distinctions between and among themselves.

I would suggest that this disparity is the result of the contest between human nature and Natural Law.

The Left appeals to the most fundamental human instincts to procure comfort, sustenance and shelter, and to obtain those basic needs by the most expedient means possible. The Left promises that the State will attain those needs equally, creating a path of least resistance for that fulfillment.

On the other end of the spectrum, the Right promotes the tenets of Natural Law -- individual liberty and its attendant requirements of personal responsibility and self-reliance.

Clearly, one of these approaches is far easier to sell to those who have been systematically dumbed down by government educational institutions and stripped of their individual dignity by the plethora of government welfare programs.

That easy sell notwithstanding, the threat of tyranny can eventually produce an awakening among the people and a reversal of trends toward statism. But this reversal depends on the emergence of a charismatic, moral leader who can effectively advocate for liberty. (Ronald Wilson Reagan comes to mind.)

For some nations, this awakening has come too late. The most notable examples in the last century are Russia, Germany, Italy and China, whose peoples suffered greatly under the statist tyrannies they came to embrace. In Germany and Italy, the state collapsed after its expansionist designs were forcibly contained. In Russia, the state collapsed under the weight of 70 years of economic centralization and ideological expansionism.

The Red Chinese regime, having witnessed the collapse of the USSR, has so far avoided its own demise by combining an autocratic government with components of a free enterprise economic system. (My contacts in China, including that nation's largest real estate developers and investment fund managers, believe the Red regime will be gone within five years.)

Of course, there exists an American option for the rejection of tyranny: Revolution. And it is an essential option, because the Natural Rights of man are always at risk of contravention by tyrants. At no time in the last century has our Republic faced a greater threat from "enemies, domestic" than right now.

"Our individual salvation," insists Barack Obama, "depends on collective salvation." In other words, BHO's tyranny, et al, must transcend Constitutional authority. And in accordance with his despotic ideals, Obama is now implementing "the fundamental transformation of the United States of America" that he promised his cadre of liberal voters.

It is yet to be seen whether the current trend toward statism will be reversed by the emergence of a great conservative leader, or by revolution, but if you're betting on another Ronald Reagan, I suggest you hedge your bet.

Our Declaration's author, Thomas Jefferson, understood the odds. He wrote, "The natural progress of things is for liberty to yield and government to gain ground," and he concluded, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

Accordingly, George Washington advised, "We should never despair, our Situation before has been unpromising and has changed for the better, so I trust, it will again. If new difficulties arise, we must only put forth new Exertions and proportion our Efforts to the exigency of the times."

Indeed we must.

Semper Vigilo, Fortis, Paratus et Fidelis!

Mark Alexander
Publisher, PatriotPost.US
Title: All in Favor of Bread and Circuses, Vote Aye, I
Post by: Body-by-Guinness on July 26, 2009, 12:07:36 PM
The Obsolete New York Model. Where a tax-eating majority votes itself a permanent income
City Journal | July 16, 2009 | Myron Magnet

It’s worth recalling that when the Founding Fathers led the American colonists in revolt against British oppression, they weren’t rebelling against torture on the rack or being chained in galleys or having to let aristocrats deflower their daughters. They were rebelling against taxes. To them, having to pay duties they hadn’t voted for themselves was a tyrannical taking of property—theft—and, in true Lockean fashion, they concluded that since government exists to protect life, liberty, and property, a regime that does the opposite renders itself illegitimate. What would they make, then, of today’s New York City, where 1.2 percent of the taxpayers—40,000 households—pay 50 percent of the income taxes, and half the households pay no income tax at all? If the tax code ensures that those who pay the bulk of the taxes are always a minority of those who vote for the legislature that imposes the taxes, isn’t that taxation without representation? Isn’t it also the tyranny of the majority that the Founders tried to prevent?

A state of affairs so opposed to the Founders’ vision could never have come about all at once. It took shape in emergency spurts, sparked by upheavals like the Civil War, which prompted crisis measures like the first federal income tax (made legal retrospectively in 1913 by the Sixteenth Amendment). For New York, the cataclysmic turning point was the Depression. Gotham was the New Deal metropolis, with New York senator Robert F. Wagner and Gotham mayor Fiorello La Guardia falling over each other to make the city the showcase for President Franklin D. Roosevelt’s big programs, designed (among other aims) to turn urban ethnics—whose normally supportive banks and charities the Depression had crushed along with their jobs—into the foundation of Democratic Party power.

As New York’s governor, FDR had already begun in 1931 to provide the state’s jobless with welfare proper—direct relief in money, food, and clothing—for the first time in over half a century. As president, he made the program national in 1933 through the Federal Emergency Relief Administration, and La Guardia quadrupled Washington’s funds with lavish state and city supplements. After the mayor heard that insolent city workers were worsening the already-painful humiliation of getting aid, he rushed down to a Lower East Side relief station to investigate. When he saw abashed applicants waiting and waiting, while an official in a hat lounged with his feet on a desk, smoking a cigar, La Guardia famously strode over to him, knocked the cigar out of his mouth and the hat off his head, and barked, “Take your hat off when you speak to a citizen!” Later he announced, “That’s another s. of a b. that has no job.” In 1935, the feds instituted another cash relief program, this one for fatherless families: Aid to Dependent Children, which was supporting 700,000 kids nationwide by 1939 and later became the main U.S. welfare scheme. In addition to such cash programs, FDR’s Public Works Administration put New Yorkers to work building the Triborough Bridge, the Lincoln Tunnel, and La Guardia Airport; by 1936, the Works Progress Administration had employed 250,000 Gothamites to construct, under the direction of La Guardia and Parks Commissioner Robert Moses, public swimming pools, beaches, playgrounds, and hospitals.

La Guardia had set about constructing the first welfare city from the moment he entered City Hall. In his 1933 campaign, he had floated the unprecedented idea of government housing, and when he won, the White House offered to fund a New York City Housing Authority if the new mayor would set it up. On a frigid December 3, 1935, the nation’s first-ever public housing project opened on the Lower East Side. “A great constitutional lawyer two years ago told me it would be a cold day when the government builds houses,” said La Guardia at the dedication of the 122-unit complex, proudly highlighting the radicalism of his accomplishment. “Well, he was right that time.” Constitutional or not, eight more projects arose during La Guardia’s three terms in City Hall. In addition, with $315 million in bond financing, the mayor took over the city’s three ailing and deteriorating private subway companies, along with its bus lines, in 1939 and 1940, turning transportation into a government-subsidized public service and transit workers into civil servants. To accompany his publicly funded municipal hospitals, he also set in motion a subsidized health-insurance program, which began operating just before he died in 1947.

Taken together, all these programs not only expanded government unimaginably but also created a comprehensive new rationale for it, very different from the Founding Fathers’ political philosophy. Not content with ensuring the liberty in which individuals are free to pursue their own happiness in their own way, government was now going to hand it to them. “We are trying to make people happy,” La Guardia announced. “We are going to make our city a real heaven,” he promised, taking politics into a realm beyond the mere art of the possible.

A much subtler thinker, Roosevelt—in the spirit of never letting a good crisis go to waste, as a modern Democrat would put it—calculatedly used the Depression as an occasion to remake society in accordance with his own vision of “social justice” and freedom, though his new birth of freedom stood Lincoln’s on its head. “Necessitous men are not free men,” he postulated. The great corporations and the tycoons who controlled them before the New Deal, he said, “had concentrated into their own hands an almost complete control over other people’s property, other people’s money, other people’s labor—other people’s lives. For too many of us, life was no longer free; liberty was no longer real; men could no longer follow the pursuit of happiness. Against economic tyranny such as this, the American citizen could appeal only to the organized power of government.”

But while big government existed to protect the individual from big business, the individual paradoxically faded out in FDR’s worldview, changed in the president’s imagination into a unit in the great social machine. “For it is literally true that the ‘self-supporting’ man or woman has become as extinct as the man of the stone age,” he declared. “Without the help of thousands of others, any one of us would die, naked and starved.” Moreover, the great social machine is better off without the rugged individuals of yore, since in Roosevelt’s conventional (and mistaken) economic theory, the Depression was a crisis of overproduction, with an excess of goods and services forcing down prices and wages. “The day of the great promoter or financial Titan, to whom we granted everything if only he would build, or develop, is over,” FDR pronounced. “Our task now is not discovery, or exploitation, of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand, . . . of distributing wealth and products more equitably.” Progress was something that had already happened; in FDR’s view—before the war, at least—America had reached the end of history.

Once you start talking about government’s equitable distribution of wealth—about giving government the power to define and create “fairness,” as Hayek put it—you have begun to leave democracy behind. And while both FDR and La Guardia were extraordinary visionaries with sincere sympathy for ordinary people, theirs was not a democratic vision. Roosevelt’s patrician paternalism saw the world from an Olympian height, from which individuals, in the shadow of the immense, almost superhuman institutions that concerned him, looked tiny and indistinguishable. The scale of his imagination was much grander than the Founders’ vision of a government powerful enough to protect individuals from the depredations of others but strictly limited and hedged by checks and balances to keep it from becoming an instrument of oppression, as history shows most governments have been.

In the same vein, La Guardia bristled at being called a “politician,” preferring the honorific “municipal officer.” In true Progressive fashion, he dreamed of government by enlightened, public-spirited experts, as opposed to venal (but democratic) Tammany-style pols, and he kept trying to soar above politics, defining himself as a “progressive” rather than a “regular” Republican. He flitted from party to party, winning the mayoralty in 1933 as the Fusion candidate, in 1937 as the Fusion, Republican, Progressive, and American Labor Party candidate, and in 1941 as the Republican candidate endorsed by his best Democratic friend, FDR. “You know I am in the position of an artist or a sculptor,” he explained. “I can see New York as it should be and as it can be if we all work together”—if, in other words, the voters would give him the power to mold their world into the shape he desired for them. Any great leader needs a vision, of course—needs to show people the world as it could be. But it is not surprising that the five-foot-two dynamo’s enemies called him the “midget Mussolini” or that he kept on his desk a figurine of that other dynamo of short stature who tried to impose his gigantic will on the world, Napoleon Bonaparte.

The Founders recognized the danger of a freely elected government’s becoming what Declaration of Independence signer Richard Henry Lee called an “elective despotism.” In their urgency to combat the Depression with all possible weapons, the New Dealers discounted that peril.

As so often happens, the emergency measures didn’t disappear when the emergency ended. But they needed an updated rationale. They got one in August 1943, when, after Gotham’s wartime job opportunities and its rich smorgasbord of welfare benefits had drawn waves of new black migrants into the city, a white cop summoned to settle an unruly dispute shot an unarmed black soldier, and Harlem erupted in riots. Even sober working people joined in the arson and looting, smashing windows and carrying off merchandise “in bundles and baskets and parcels.” Six died; property damage totaled $15 million. Mayor La Guardia’s response was to turn all the machinery of the new welfare city to eradicating the racial inequality that, in his view, had sparked the riots—though a Brooklyn grand jury at that very moment recommended better policing as the solution to that borough’s African-American lawlessness. Roundly condemning the Brooklyn approach, the mayor gave the welfare city a new justification: creating racial justice. For the first time, though, with New Deal money no longer flowing, the cost of welfare put the city budget in deficit. La Guardia’s successors raised taxes by dribs and drabs, a hotel levy here, a sales-tax boost there.

Title: All in Favor of Bread and Circuses, Vote Aye, II
Post by: Body-by-Guinness on July 26, 2009, 12:08:11 PM
La Guardia was ahead of his time, but over 20 years later, when John Lindsay took over city hall during President Johnson’s War on Poverty and Nelson Rockefeller’s long, liberal reign as New York’s governor, the nation had caught up. Redressing three centuries of racial wrongs became America’s Number One political crusade. As always, New York marched in the vanguard, with LBJ taking as his chief antipoverty model a Lower East Side far-left community-organizing group called Mobilization for Youth, which emphasized confrontational political activism to change “the system,” poverty’s supposed cause.

Lindsay himself—a “progressive” Republican like La Guardia, though without the genius—adopted a dumbed-down version of Marx’s already-crude idea that ideas and values are merely an automatic reflection of the economic “base.” So he set out to provide poor black New Yorkers with middle-class incomes, middle-class housing in middle-class neighborhoods, and middle-class political control of schooling as a way of making them middle-class citizens with a middle-class outlook. The result of such governmental largesse was exploding welfare dependency, anarchic housing projects, family collapse, and open warfare between activists and teachers whose destructive consequences proved ineradicable. As the welfare rolls shot up under radical social-services chief Mitchell “Come-and-Get-It” Ginsberg, and as businesses and middle-class taxpayers began fleeing the disorder, taxes shot up, too, and New York City imposed its first personal income tax during Lindsay’s first year in office, 1966.

But over the following decades—and despite all the War on Poverty foolishness that turned so many of its supposed beneficiaries into an intergenerational underclass—the Civil Rights Act of 1964, along with a transformation of white attitudes about race, really accomplished the civil rights revolution that the country desired, fully opening American opportunity to African-Americans. Much effort went into denying this accomplishment—from blacks whose identity rested on their sense of grievance, from unionized service providers and clients fearful of losing their incomes, from politicians and advocates staring into the dustbin of history. But with the election of an African-American as president, even many blacks who once resisted the idea are starting to imagine themselves as an equal part of the American nation.

A democracy can’t tax citizens without a rationale, however cockeyed, as much of the War on Poverty’s rationale was. That’s part of the reason for the outrage over the Bush-era congressional earmarks to build a bridge to nowhere or remove tattoos or combat obesity: giving legislators taxpayer money to disburse as they saw fit, with no stated national purpose, pulled the veil off the great taxation machine and revealed parts of it, at least, as a racket—as theft, the Founders would say. Now our polity stands at an inflection point. “New Deal II: The War on Poverty” is over, its mission accomplished, though by different means than it foresaw. What do we do with the government machinery it justified?

A strangely fortunate by-product of the War on Poverty’s focus on minorities was that it largely insulated white America from the most destructive and demoralizing welfare programs and attitudes that retarded progress among many of the black and Hispanic poor. It shunted the New Deal welfare state onto a branch line, while England and Europe hurtled down the welfare state’s main line to much more widespread dependency and idleness, low growth, limited horizons, little innovation, and a grossly bloated public sector, with countless unproductive government drones gobbling up a porcine share of GDP and further constricting liberty through meddling, “fairness”-promoting diktats.

But in New York, with its vast population of the hereditary minority poor, we now have something less like the rest of America and more like the European welfare state: heavily and inequitably taxed; undemocratic, unsustainable, and largely pointless; with government telling us what to eat and where to smoke, using its total control of the school system to accomplish little beyond boosting costs dramatically, subsidizing or dictating the rents on half of the city’s rental apartments, forcing private health-insurance buyers to subsidize the care of the indigent, and prohibiting us from asking whether those who use the services we pay for are here legally. Our public services, even vital ones like the subway, work badly, because they operate less for the convenience of their users than for the sake of their unionized, overpaid employees, now not so much public servants as the public’s masters, through the vast political might they wield over so powerful a government.

On top of which, New York State, judged the “least free” in the nation in a new George Mason University study of personal and economic liberty, is quicker than the other 49 states to wield eminent domain to take away private property and give it to someone else, the absurd extreme of government-forced redistribution. Such unfreedom—along with “swarms of officers to harass our people, and eat out their substance”—would have driven the Founders to arms, but New Yorkers have no idea of how to reform a government that is essentially a one-party elective despotism with no checks and balances, and no democratic levers of change, such as voters’ initiatives and referenda. For us, the clearest solution is to leave, as millions of middle-class individuals and most of our Fortune 500 headquarters have done over the last half-century.

Struggling under the accumulated burden of eight decades of “progressive” government, we New Yorkers can serve as a warning to our fellow Americans as President Obama, following the New Deal playbook, seeks to use the current financial crisis to provide a new rationale and legitimacy for the gargantuan machinery of the federal government. Our economic ills, the president contends, require expanding the welfare state to include the majority of Americans not just in Medicare and Social Security but also in government-subsidized and -controlled health care and higher education—all paid for by an ever smaller percentage of the citizens, in the name of European-style redistributionist “fairness.” Logically, this plan is a non sequitur (in the process of turning, by constant repetition, into a Big Lie), since health care and education have nothing to do with the causes or cure of our present economic woes. But logic aside, consider New York’s government-controlled services and ask if they are worth taking to nationwide scale. Take a good look at the president’s tax plans, too, which will end up with many more Americans paying nothing and many fewer paying most of the bills. Once the tax eaters outnumber the taxpayers and can vote themselves an income, you have arrived at elective despotism.

And despotism is the real issue, much larger than high taxes and bad services provided by public employees whose pensions and lifetime health benefits dwarf those of most taxpayers who struggle to support them. Just look beyond European-style New York to Europe proper. In the name of “fairness,” European governments have criminalized free speech, with France prosecuting Brigitte Bardot, and Switzerland and Italy prosecuting Oriana Fallaci, for anti-Muslim statements, while the British home secretary who charged her husband’s porno movie rentals to the taxpayers has barred Dutch M.P. Geert Wilders and American talk-show host Michael Savage from Britain for fomenting anti-Islamic hatred. The Scandinavian countries have outlawed antihomosexual speech as well.

As Theodore Dalrymple has written in these pages, governments that take charge of life’s important matters—health care, pensions, the education of children—infantilize their citizens, making them so frivolous and torpid that they become unwilling even to defend their country and their way of life. “I have never learned to fight for my freedom,” Mark Steyn quotes one Dutchman saying ruefully about the Islamization of his country. “I was only good at enjoying it.” In this spirit, 15 British sailors surrendered without a shot to an Iranian gunboat in the Persian Gulf two years ago. “From the outset, it was very apparent that fighting back was simply not an option,” said a marine captain among these latter-day representatives of Lord Nelson’s indomitable tars. “Had we chosen to do so, then many of us would not be standing here today.” Such unblushing cowardice makes the Royal Navy, for all its costly weaponry, about as fearsome as the expensively armed Saudi or Egyptian air forces.

More important still, the propounders of the individualist work ethic, from Alexander Hamilton onward, had it right: a free society isn’t one that alleviates the burden of supporting ourselves and our families, but rather one that provides the opportunity to labor in a way that brings to light whatever human excellence may lie within us—a way that perhaps even adds to the sum of human progress. As opposed to FDR’s immense governmental machine throbbing mightily at the end of history, how much grander is Edmund Burke’s vision of society as “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection.” It is a vision in which some can be the Titans Roosevelt rejected—not just the Morgans and the Vanderbilts that New York produced, but also its Edith Whartons and its Herman Melvilles. Most crucially, all can be humans, free citizens with a sense of purpose, not cogs.

Myron Magnet is City Journal’s editor-at-large and was its editor from 1994 through 2006. He is the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass and a recipient of the National Humanities Medal
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on August 06, 2009, 10:54:00 AM
Ultimately the survival and flourishing of the American Creed is up to us:     
Title: National Guard
Post by: Crafty_Dog on August 16, 2009, 07:57:55 AM
Pentagon, governors clash over reserve units
The Defense Department is engaged in a turf war with the nation's governors, who object to plans for greater Pentagon control over Reserve units called up to assist with natural disasters. Unless governors remain in control, "strong potential exists for confusion in mission execution and the dilution of governors' control over situations with which they are more familiar and better capable of handling than a federal military commander," according to the National Governors Association. But the Pentagon responds that reservists already are under federal command during national emergencies such as terrorist attacks, and that the new proposal is simply an extension of that authority. "This provision would in no way impede or undermine or inadvertently reduce the authority that governors exercise under the United States Constitution," says Paul Stockton, the Pentagon's assistant secretary for homeland defense. Google/The Associated Press (8/13)
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on August 17, 2009, 09:08:02 AM
From the DBMAA forum:

 In 1774 the colonies established the Continental Congress to coordinate their efforts against British rule. In 1776 the Congress adopted the Declaration of Independence. In 1781, while the war was still on going the C.C. formed the first constitution and the states ratified it; this was the Articles of Confederation. As a confederation it allowed each state to be sovereign and independent, with the states being supreme over the national government. The Articles reflected the fears of having a powerful, distant central government, after all they were fighting to get away from just such a government. The leaders at the time thought that given any power at all the new government would grow to be too strong and individual liberty would again be lost. They understood that individuals would have more of a chance to influence and maintain control over a state government than they would a central government.

 After the end of the war it became clear that in their effort to keep the national government from becoming to powerful, they had weakened it to the point where it couldn't act on things of national interest with any effectiveness and they also realized that some states were using their power to the detriment of other member states. The Continental Army had been disbanded after the war and treaties signed but Britain still had outposts in the northwest and a standing army in Canada. Spain still claimed the entire Mississippi river valley and control shipping down the Mississippi to the Gulf and posed a threat to trade; and just as well, the Barbary pirates were seizing American ships and sailors on the high seas. Then on the domestic front was the huge war debt to be paid and problems with trade between the states and other governments. If Congress made a trade deal with another nation the states could ignore it, put tariffs on the goods and so on. Most states held elections every year which led to pandering. Politicans would pass laws to forgive debts, change laws on the whims of a single wealthy complaintant just to ensure they were reelected. In other words there was and excess of democracy.
All of this was of great concern but when Shay's Rebellion happened in 1786/87 it put the fear into them that their nation was about to fall apart. The states were becoming tyrannical and at the same time inciting mob rule. In short the government was too decentralized to ensure either peace or prosperity among the states. The Congress could not raise an army because it could not draft individuals or impose a tax to finance it; Congress could not enforce any treaty or trade agreement and was dependent on the states, who put their own self interests above all others. Things had gotten so bad that Nathaniel Gorham, the president of the C.C., wrote to Prince Henry of Prussia, telling him that there has been a failure of all our free institutions and asked if he would agree to become King of America. The Prince refused.

 It was under these conditions that in 1787, just three months after Shay's Rebellion, that Congress convened to revise the Articles. The states picked 74 delegates to send and 55 showed up. Rhode Island didn't send anyone out of fears that they would no longer be able to forgive debts to its farmers. Patrick Henry of Kentucky said, "I think I smelt a rat", when asked why he wouldn't attend. Many felt that this was leading up to a betrayal of the spirit of 76 and that the liberty they fought long and hard for was about to be stolen out from under them.

 The first thing the delegates agreed upon was that a new constitution was needed instead of a revised Articles of Confederation, so they started from scratch. They continued to fear creating a distant government with too much power; all the reasons they rebelled against British rule was still very vivid in their hearts and minds and they were not throwing those away. The consensus from the start was to have limited government, some want more some wanted less and there were compromises galore but the over riding factor was on limits that protected individual liberty and preserved states rights. They did not want a national government that wielded all the power but had enough power to be effective. Out of this came federalism and separation of powers and checks and balances. These were meant to constrain and contain the new government, to secure individual liberty and rights. They agreed on the three branches, the legislative, executive, and judiciary. Madison said, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny." To further establish protections for liberty they took away the question of who had sovereignty by giving it to the people. This is what Lincoln was referring to and he did not invent the idea of a government for the people by the people. They also set terms in the House to two years and in the Senate to six to reduce pandering but still keep them answerable to the people and their states. Until the seventeenth amendment was adopted, the Senate seats were appointed by the state's legislators. Term limits were set by elections, if the people kicked you out, the number of terms you served was limited.
Title: Is Obamacare Constitutional?
Post by: Body-by-Guinness on August 22, 2009, 01:03:06 PM
Illegal Health Reform
By David B. Rivkin Jr. and Lee A. Casey
Saturday, August 22, 2009

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a "benefit" that some part of the population would not choose to eschew.

The other obvious alternative is to use Congress's power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either.

Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a "tax" to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous -- and therefore unlikely -- scenario, advocates of universal health coverage must accept that Congress's power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

The writers are partners in the D.C. office of Baker Hostetler LLP and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.
Title: Holder vs. OK English as official language
Post by: Crafty_Dog on August 27, 2009, 01:05:43 PM

Obama’s Imperial Decree: Target Oklahoma

Posted on 06 August 2009

by Bryce Shonka

Remember the good old days, when one only had to watch out for the Federal Government’s twisted interpretation of the commerce clause to justify tyranny?

Well those days seem to be long gone.  The Obama Administration has been employing an old tactic lately – what some might call an imperial threat – and they’re not doing it overseas, either.


The state of Oklahoma is now the target of a direct challenge from US Attorney General Eric Holder, who is using the Civil Rights Act of 1964 as justification to violate Oklahoma’s sovereignty as affirmed by the Tenth Amendment to the US Constitution.

In a letter written to the State Attorney General in April, the Federal government used aggressive language, bringing up the possibility of withholding Federal funds appropriated for Oklahoma.  The reason?  A proposed amendment to the State Constitution, which requires voter approval, that would make English the official language of the State.

“What it indicates is the Federal Government’s contempt for the states, in this case Oklahoma, and for the idea of federal — as opposed to national — government. AG Holder believes that Oklahoma is an administrative subdivision of the USA, and that it is perfectly right for him to coerce Oklahomans to do his will. Who cares whether he has ever been to Oklahoma, met an Oklahoman, or thought about Oklahoma?” said Kevin Gutzman, an American historian and New York Times bestselling author.

Oklahoma is not alone as a state challenged by central authority in recent months.  Recently, federal firearms licensees in Tennessee and Montana received a letter from another Federal agency, the ATF, who had also issued a decree wrought with hubris - claims by the Federal government of their legal supremacy across the land.


“Both of these letters, particularly this letter to the Attorney General of Oklahoma, are very officious,” observed Rob Natelson, professor of law at the University of Montana.  “It reminds one eerily of the kinds of communications that started to come out from the Emperor to the local cities of the Roman Empire, beginning the course of the ultimate destruction of local government.”

Professor Natelson is a widely-recognized expert on the framing and adoption of the United States Constitution, and on several occasions, he has been the first to uncover key background facts about the Constitution’s meaning.  I knew this before our conversation.  What I didn’t know, however, was that he’s also been studying Roman Law and history for the past 50 years, and is responsible for several works in that field.

“During the 2nd century AD, the Roman Emperors began increasingly to interfere with local government and they did this with…letters…letters that look something like this,” continued Natelson, indicating the letter from Holder to Oklahoma.  “They started out as almost advisory and they got increasingly peremptory.  By the end of the 2nd century, there was very little local government left.  You had very few people, therefore, willing to participate in local elections; very little patriotic spirit towards one’s own province or city.  And this was the harbinger for the ultimate centralization of the Roman Empire.”

He continued with a strong, decisive tone, “Almost everyone who’s studied in that area agrees that the effect was to sap the life out of the empire, so that everything flowed to the center.  All that counted was the Emperor and his bureaucrats…and his courtiers.  I look at this and I see this letter which gets close to looking like an order from the central government down to a sovereign state legislature, and I say…WOW.  This looks like something that Septimius Severus would have sent to the local officials.”

In Columbus, Ohio last weekend, a rally in support of State Sovereignty drew around 7,000 people.  Judge Andrew Napolitano addressed the rally and made similar comments indicating the nature of our current point in US history.

“In the long history of the world, very few generations have been granted the role of defending freedom in its maximum hour of danger. This is that moment and you are that generation”


Are these men ‘crying wolf’?

“Some people might think that’s a far fetched analogy but I can’t emphasize enough how important this development is seen by historians.  When people think of the collapse of the Roman Empire they think of the fall of Rome in 476 AD.  The conversion of Rome from a relatively free state - almost a Federation - into a totalitarian state, really picked up speed and accelerated during the 2nd century [AD], with this increasing intermeddling by the central authorities in local state government.  That’s what it reminded me of,” recalled Natelson.

“[The DOJ] are not violating any law by sending these letters, but there’s a change in tone, there’s a new and disturbing tone in them.  At least the ATF letter was addressed to individuals.  This one is addressed to a state legislature - really, it’s a bit much. Besides the fact that there’s the tone, there’s the fact that they sent the letters at all.  Most of the letters that were sent out by the emperor were called rescripts, and that’s almost what [the letter from Holder] looks like.  The one difference is that a rescript was usually a reply to a request for advice.  In some ways this is worse than a rescript because this is unsolicited.  A better way to compare it would be to an imperial constitutio - an imperial decision or decree.” Natelson added.

His Roman analogy is worth considering, for several reasons.  Rome may have ended up a brutal dictatorship, but it began through a series of treaties between regions, and in some ways parallels present day America.

“When you draw comparisons between the U.S. and ancient Rome, you have to be very cautious, though Rome does have lessons to offer us and the history and results of the relentless centralization of the Empire is one of them,” Natelson continued.


If there’s a case to be made that the US is headed for the same sort of central plan that sucks the life out of a Republic, it would be difficult to imagine who in the United States could be encouraged by such a trend, outside of DC’s beltway.

“Certainly state legislators in Oklahoma and congressmen from Oklahoma should put the Federal Government on notice that they will support a substantial reduction in the budget for Holder’s portion of the federal bureaucracy so long as he is trying to coerce them in this way.” recommended Gutzman.

Worldwide trends in recent political elections do exhibit signs of a move away from central planner candidates, a trend the United States has been contrary to for nearly a decade, but perhaps the pendulum has reversed itself.

“As the economy grows increasingly complicated, increasingly interdependent and increasingly technological, centralized control (which never worked very well) works less and less, and people are less willing to stand for it.  This reflects a visceral gut reaction people have against centralized control, because they know from their own life it makes no sense, though it always takes time for those mega-trends to filter into the political class,” Natelson continued. “Eventually, when a mule gets hit over the head enough times it figures out what’s going on, and eventually the politicians will figure out what’s going on, too.”

People in the US are coming together by the thousands, demanding decentralization and nullification of Federal powers. Never before have the political elites had to contend with a non-partisan political force on such a massive scale.  A storm seems to be brewing; a maelstrom of everyday Americans rallying around the document designed to keep the government in fear of the people - instead of the other way around.


Bryce Shonka [send him email] is Media and Grassroots director for the TenthAmendmentCenter


Title: Sovereignty
Post by: Crafty_Dog on September 01, 2009, 10:11:41 AM

The Constitution and American Sovereignty

"WOULD WE be far wrong," President Lincoln asked in a special message to Congress in 1861, "if we defined [sovereignty] as a political community without a political superior?" Maybe that’s not exhaustive, but it comes on good authority. And notice that for Lincoln, sovereignty is a political or legal concept. It’s not about power. Lincoln didn’t say that the sovereign is the one with the most troops. He was making a point about rightful authority.

By contrast, sovereignty wasn’t an issue in the ancient world. Cicero notes that the ancient Romans had the same word for "stranger" as for "enemy." In the ancient world, people didn’t interact with foreigners enough to think about their relation to them except insofar as it meant war. Nor was sovereignty an issue in medieval Europe, since the defining character of that period was overlapping authority and a lot of confusion about which authority had primary claims. No one had to think about defining national boundaries. This became an issue only in the modern era, when interaction between different peoples increased.

The first important writer to address sovereignty was Jean Bodin, a French jurist of the late 16th century. In his work, Six Books of the Republic, Bodin set out an understanding of sovereignty whereby the King of France represented an independent political authority rather than owing allegiance to the Holy Roman Emperor or to the Pope. In the course of developing this argument, Bodin also advocated religious toleration and insisted that a monarch can neither seize property except by law nor raise taxes except by the consent of a representative body. He was in favor of free trade, and he insisted on the monarch’s general obligation to respect the law of nature and the law of God. His main practical point was that the government must be strong enough to protect the people’s rights, yet restrained enough not to do more than that. Subsequently, I might add, Bodin wrote a book about witchcraft—which he very much opposed. Witches are people who think they can make an end run around the laws of nature and of God using magical spells, and Bodin saw them as a menace.

It was not until the 17th century that the word "sovereignty" became common. This was also when people first came to think of representative assemblies as legislatures. Indeed, the word "legislature" is itself a 17th century term reflecting the modern emphasis on law as an act of governing will rather than impersonal custom. It is therefore related to the modern notion of government by consent. Significantly, it was also in this same era that professional armies came into being. Before the 17th century, for instance, there was no such thing as standard military uniforms. Uniforms indicate that soldiers have a distinct status and serve distinct governments. They reflect a kind of seriousness about defense.

The 17th century is also the period when people began thinking in a systematic way about what we now call international law or the law of nations—a law governing the relation of sovereign nations. The American Declaration of Independence refers to such a law in its first sentence: "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them . . . ." The Declaration assumes here that nations have rights, just as individuals do.

The Sovereign Constitution

Returning to Lincoln, his understanding was that in an important sense American sovereignty rested in the Constitution. Article 7 of the Constitution declares that it will go into effect when it is ratified by nine states, for those nine states. And once ratified—once the people of those states have entered into the "more perfect Union’’ described in its Preamble—the Constitution is irrevocable. Unlike a treaty, it represents a commitment that cannot be renegotiated. Thus it describes itself unambiguously as "the supreme Law of the Land"—even making a point of adding, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The Constitution provides for treaties, and even specifies that treaties will be "the supreme Law of the Land"; that is, that they will be binding on the states. But from 1787 on, it has been recognized that for a treaty to be valid, it must be consistent with the Constitution—that the Constitution is a higher authority than treaties. And what is it that allows us to judge whether a treaty is consistent with the Constitution? Alexander Hamilton explained this in a pamphlet early on: "A treaty cannot change the frame of the government." And he gave a very logical reason: It is the Constitution that authorizes us to make treaties. If a treaty violates the Constitution, it would be like an agent betraying his principal or authority. And as I said, there has been a consensus on this in the past that few ever questioned.

Let me give you an example of how the issue has arisen. In 1919, the United States participated in a conference to establish the International Labour Organization (ILO). The original plan was that the members of the ILO would vote on labor standards, following which the member nations would automatically adopt those standards. But the American delegation insisted that it couldn’t go along with that, because it would be contrary to the Constitution. Specifically, it would be delegating the treaty-making power to an international body, and thus surrendering America’s sovereignty as derived from the Constitution. Instead, the Americans insisted they would decide upon these standards unilaterally as they were proposed by the ILO. In the 90 years since joining this organization, I think the U.S. has adopted three of them.

Today there is no longer a consensus regarding this principle of non-delegation, and it has become a contentious issue. For instance, two years ago in the D.C. Court of Appeals, the National Resources Defense Council (NRDC), an environmental group, sued the Environmental Protection Agency (EPA), claiming that it should update its standards for a chemical that is thought to be depleting the ozone layer. There is a treaty setting this standard, and the EPA was in conformity with the treaty. But the NRDC pointed out that Congress had instructed the EPA to conform with the Montreal Protocol and its subsequent elaborations. In other words, various international conferences had called for stricter emission standards for this chemical, and Congress had told the EPA to accept these new standards as a matter of course. The response to this by the D.C. Court of Appeals was to say, in effect, that it couldn’t believe Congress had meant to do that, since Congress cannot delegate its constitutional power and responsibility to legislate for the American people to an international body. This decision wasn’t appealed, so we don’t yet have a Supreme Court comment on the issue.
Title: 2
Post by: Crafty_Dog on September 01, 2009, 10:14:38 AM
The delegation of judicial power is another open question today. There’s no doubt that the U.S. can agree to arbitrations of disputes with foreign countries, as we did as early as the 1790s with the Jay Treaty. But it’s another thing altogether to say that the rights of American citizens in the U.S. can be determined by foreign courts. This would seem to be a delegation of the judicial power, which Article 3 of the Constitution says "shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This became an issue last year in the case of Medellin v. Texas, which considered an International Court of Justice ruling that Texas could not execute a convicted murderer, because he had not been given the chance to consult the Mexican consulate before his trial, as he had the right to do under an international treaty. The Supreme Court, after much hand-wringing, concluded that it didn’t think the Senate had intended to give the International Court of Justice the power to decide these questions of American law as applied by American courts. I would go further and say that no matter what the Senate intended, this is not a power which can be delegated under the Constitution. But it is no longer clear that a majority on the Supreme Court would agree.
Or consider the Spanish judges who want to arrest American politicians if they venture into Europe, in order to try them for war crimes. This is preposterous. It is akin to piracy. And not only has our government not protested this nonsense, but it has contributed to building up an international atmosphere in which this sort of thing seems plausible—an atmosphere where the old idea of a jury of one’s peers and the idea of Americans having rights under the Constitution give way to the notion of some hazy international standard of conduct that everyone in the world can somehow agree upon and then enforce on strangers.

The Loss of Sovereignty

It is important to think about these issues regarding sovereignty today, because it is possible to lose sovereignty rather quickly. Consider the European Union. The process that led to what we see today in the EU began when six countries in 1957 signed a treaty agreeing that they would cooperate on certain economic matters. They established a court in Luxembourg—the European Court of Justice—which was to interpret disputes about the treaty. To make its interpretations authoritative, the Court decreed in the early 1960s that if the treaty came into conflict with previous acts of national parliaments, the treaty would take precedence. Shortly thereafter it declared that the treaty would also take precedence over subsequent statutes. And in the 1970s it said that even in case of conflicts between the treaty and national constitutions, the treaty would take precedence. Of course, judges can say whatever they want. What is more remarkable is that all the nations in the EU have more or less grudgingly accepted this idea that a treaty is superior to their constitutions, so that today whatever regulations are cranked out by the European Commission—which is, not to put too fine a point on it, a bureaucracy—supersede both parliamentary statutes and national constitutions. And when there was eventually a lot of clamor about protection of basic rights, the court in Luxembourg proclaimed that it would synthesize all the different rights in all the different countries and take care of that as well.

So on the one hand the European Union has constitutional sovereignty, but on the other it doesn’t have a constitution. When its bureaucrats recently attempted to write a constitution and get it adopted, a number of countries voted it down in referendums. Apart from lacking a constitution, the EU doesn’t have an army or a police force or any means of exercising common control of its borders. In effect, it claims political superiority over member states but declines to be responsible for their defense. Indeed, I think inherent in this whole enterprise of transcending nation-states through the use of international institutions is the idea that defense is not so important.

All of this has happened in Europe in a very short period, and is the reason we should be concerned about the loss in our own country of a consensus regarding constitutional sovereignty. Think of the Kyoto Protocol on global warming, which many of our leading politicians now say we should have ratified. Doing so would have delegated the authority over huge areas of important public policy to international authorities. It would have been a clear delegation of the treaty-making power. Nevertheless, the Obama administration is aiming to negotiate a new treaty along those lines.

Of even more urgent concern is the increasing sense that human rights law transcends the laws of particular countries, even those pertaining to national defense. Of course, the idea that there should be standards that all countries respect when engaged in armed conflict is fair enough. But who is going to set the standards? And who is going to enforce them—especially against terrorists who refuse to act like uniformed professional soldiers? What we once called the "law of war" is now commonly referred to as "international humanitarian law." Many today say that we need to follow this law as it is defined by the International Red Cross. But who makes up this organization in Geneva, Switzerland, and what gives them the authority to supersede national statutes and constitutions? Currently the International Red Cross thinks it is a violation of humanitarian standards for the U.S. to hold prisoners in Guantanamo Bay—not on the basis of any claim that these prisoners are mistreated, but based on the argument that they cannot be held indefinitely and should be put on trial in ordinary criminal courts. Even the Obama administration is not yet willing to conform to this particular standard of so-called international law, believing that holding these prisoners is vital to national defense and that the right to self- defense is morally compelling.

* * *
Where does this trend away from the sovereignty of national constitutions lead? I do not think the danger is a world tyranny. I think that idea is fantastical. Rather what it will lead to, I think, is an undermining of the idea that national governments can protect people, with the result that people will start looking for defense elsewhere. We saw this in an extreme way in Iraq when it collapsed into chaos before the surge, and people looked for protection to various ethnic or sectarian militias. A similar phenomenon can be seen today in Europe with the formation of various separatist movements. We’re even hearing loud claims for Scottish independence. And it’s not surprising, because to the extent that Britain has surrendered its sovereignty, Britain doesn’t count for as much as it used to. So why not have your own Scotland? Why not have your own Wales? Why not have your own Catalonia in Spain? And of course the greatest example of this devolution in Europe is the movement toward Muslim separatism. While this is certainly driven to a large extent by trends in Islam, it also reflects the fact that it doesn’t mean as much to be British or to be French any more. These governments are cheerfully giving away their authority to the EU. So why should immigrants or children of immigrants take them seriously?

At the end of The Federalist Papers, Alexander Hamilton writes: "A nation, without a national government, is, in my view, an awful spectacle." His point was that if you do not have a national government, you can’t expect to remain a nation. If we are really open to the idea of allowing more and more of our policy to be made for us at international gatherings, the U.S. government not only has less capacity, it has less moral authority. And if it has less moral authority, it has more difficulty saying to immigrants and the children of immigrants that we’re all Americans. What is left, really, to being an American if we are all simply part of some abstract humanity? People who expect to retain the benefits of sovereignty—benefits like defense and protection of rights—without constitutional discipline, or without retaining responsibility for their own legal system, are really putting all their faith in words or in the idea that as long as we say nice things about humanity, everyone will feel better and we’ll all be safe. You could even say they are hanging a lot on incantations or on some kind of witchcraft. And as I mentioned earlier, the first theorist to write about sovereignty understood witchcraft as a fundamental threat to lawful authority and so finally to liberty and property and all the other rights of individuals.
Aut vincere, aut mori. Sic itur ad astra.
Title: Holder's hidden agenda
Post by: Crafty_Dog on September 01, 2009, 10:15:39 AM
Third post of the morning

August 28, 2009, 4:00 a.m.

Eric Holder’s Hidden Agenda
The investigation isn’t about torture, but about transnationalism.

By Andrew C. McCarthy

‘This is an administration that is determined to conduct itself by the rule of law. And to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it.”

It was springtime in Berlin and Eric Holder, a well-known “rule of law” devotee, was speaking to the German press. He’d been asked if his Justice Department would cooperate with efforts by foreign or international tribunals to prosecute U.S. government officials who carried out the Bush administration’s post-9/11 counterterrorism policies. The attorney general assured listeners that he was certainly open to being helpful. “Obviously,” he said, “we would look at any request that would come from a court in any country and see how and whether we should comply with it.”

As the Associated Press reported at the time, Holder was “pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials.” He skirted the question in a way Americans ought to find alarming. The attorney general indicated that he was speaking only about “evidentiary requests.” Translation: The Obama administration will not make arrests and hand current or former American government officials over for foreign trials, but if the Europeans or U.N. functionaries (at the nudging of, say, the Organization of the Islamic Conference) want Justice’s help gathering evidence in order to build triable cases — count us in.

Hue and cry followed Holder’s decision this week to have a prosecutor investigate CIA interrogators and contractors. The probe is a nakedly political, banana republic-style criminalizing of policy differences and political rivalry. The abuse allegations said to have stunned the attorney general into acting are outlined in a stale CIA inspector general’s report. Though only released this week — a disclosure timed to divert attention from reports that showed the CIA’s efforts yielded life-saving intelligence — the IG report is actually five years old. Its allegations not only have been long known to the leaders of both parties in Congress, they were thoroughly investigated by professional prosecutors — not political appointees. Those prosecutors decided not to file charges, except in one case that ended in an acquittal. As I outline here, the abuse in question falls woefully short of torture crimes under federal law.

Americans are scratching their heads: Why would Holder retrace this well-worn ground when intimidating our intelligence-gatherers so obviously damages national security? The political fallout, too, is palpable. Leon Panetta, the outraged CIA director, is reportedly pondering resignation. President Obama, laying low in the tall grass on his Martha’s Vineyard vacation, is having staffers try to put distance between himself and his attorney general. It is unlikely that many will be fooled: Both Obama and Holder promised their antiwar base just this sort of “reckoning” during the 2008 campaign. But the question remains, Why is Holder (or, rather, why are Holder and the White House) instigating this controversy?

I believe the explanation lies in the Obama administration’s fondness for transnationalism, a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests.

Recall that the president chose to install former Yale Law School dean Harold Koh as his State Department’s legal adviser. Koh is the country’s leading proponent of transnationalism. He is now a major player in the administration’s deliberations over international law and cooperation. Naturally, membership in the International Criminal Court, which the United States has resisted joining, is high on Koh’s agenda. The ICC claims worldwide jurisdiction, even over nations that do not ratify its enabling treaty, notwithstanding that sovereign consent to jurisdiction is a bedrock principle of international law.

As a result, there have always been serious concerns that the ICC could investigate and try to indict American political, military, and intelligence officials for actions taken in defense of our country. Here it’s crucial to bear in mind that the United States (or at least the pre-Obama United States) has not seen eye-to-eye with Europe on significant national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as “proportional” use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT’s placing of “cruel, inhuman, and degrading treatment” on a par with torture. By contrast, Europe generally accepts the UNCAT in toto.

#pageAs long as we haven’t ratified a couple of bad human-rights treaties, why should we care that Europe considers them binding? Because of the monstrosity known as “customary international law,” of which Koh is a major proponent. This theory holds that once new legal principles gain broad acceptance among nations and international organizations, they somehow transmogrify into binding law, even for nations that haven’t agreed to them. That is, the judgment of the “international community” (meaning, the judgment of left-wing academics and human-rights activists who hold sway at the U.N. and the European Union) supersedes the standards our citizens have adopted democratically. It is standard fare among transnational progressives to claim that Protocol I is now binding on the United States and that what they define as cruel, inhuman, and degrading treatment is “tantamount to torture.”

And the transnational Left has still another treat in store: its notion of “universal jurisdiction.” This theory holds that individual nations have the power to prosecute actions that occur in other countries, even when they have no impact on the prosecuting nation. The idea is that some offenses — such as torture and war crimes — so offend the purported consensus of humanity (i.e., so offend left-wing sensibilities) that they may be prosecuted by any country that cares to take the initiative. In fact, many countries (the United States included) open their justice systems to civil suits against government officials — again, even if the country where the suit is filed has nothing to do with the alleged offenses.

So we come back to Holder in Berlin. Two months before the attorney general’s visit, the U.N.’s “special rapporteur on torture” told German television that the Obama administration had “a clear obligation” under the UNCAT to file torture charges against former president George W. Bush and former defense secretary Donald Rumsfeld. The rapporteur was relying on documents produced because of American investigations — including a nakedly partisan report by the Democrat-controlled Senate Armed Services Committee.

Meanwhile, as I detailed here in March, Spain’s universal-justice crusader Baltasar Garzón is pursuing his own torture case against Bush administration lawyers who weighed in on interrogation policy. Garzón is the Spanish investigating magistrate who, with the help of a terrorist turned human-rights lawyer, had Chilean strongman Augusto Pinochet arrested in England for crimes against humanity. The same terrorist-lawyer, Gonzalo Boye, is helping Garzón on the Bush case. The Brits, by the way, eventually decided not to send Pinochet to Spain, but not before the law lords ruled that they could, a decision enthusiastically hailed at the time by U.N. High Commissioner on Human Rights Mary Robinson, the former president of Ireland. That would be the same Mary Robinson of Durban infamy — the one President Obama just honored with the Medal of Freedom.

And then there is the Center for Constitutional Rights, a Marxist organization that for years has coordinated legal representation for terrorists detained at Guantanamo Bay. The CCR has been attempting to convince Germany, France, Spain, and other countries to file war-crime indictments against former Bush administration officials, including President Bush, Vice President Cheney, and Secretary Rumsfeld. In representing America’s enemies, CCR has collaborated with many private lawyers, who also volunteered their services — several of whom are now working in the Obama Justice Department. Indeed, Holder’s former firm boasts that it still represents 16 Gitmo detainees (the number was previously higher). And, for help shaping detainee policy, Holder recently hired Jennifer Daskal for DOJ’s National Security Division — a lawyer from Human Rights Watch with no prior prosecutorial experience, whose main qualification seems to be the startling advocacy she has done for enemy combatants.
Title: Holder 2
Post by: Crafty_Dog on September 01, 2009, 10:17:25 AM
fourth post of the morning:

Put it all together and it’s really not that hard to figure out what is going on here.

Transnationalists from outside and, now, inside our government have been ardent supporters of prosecutions against American officials who designed and carried out the Bush counterterrorism policies that kept this country safe after 9/11. The U.N.’s top torture monitor is demanding legal action, almost certainly as a prelude to calling for action by an international tribunal — such as the ICC — if the Justice Department fails to indict. Meantime, law-enforcement authorities in Spain and elsewhere are weighing charges against the same U.S. officials, spurred on by the CCR and human-rights groups that now have friends in high American places. In foreign and international courts, the terrorist-friendly legal standards preferred by Europe and the U.N. would make convictions easier to obtain and civil suits easier to win.

Obama and Holder were principal advocates for a “reckoning” against Bush officials during the 2008 campaign. They realize, though, that their administration would be mortally wounded if Justice were actually to file formal charges — this week’s announcement of an investigation against the CIA provoked howls, but that’s nothing compared to the public reaction indictments would cause. Nevertheless, Obama and Holder are under intense pressure from the hard Left, to which they made reckless promises, and from the international community they embrace.

The way out of this dilemma is clear. Though it won’t file indictments against the CIA agents and Bush officials it is probing, the Justice Department will continue conducting investigations and releasing reports containing new disclosures of information. The churn of new disclosures will be used by lawyers for the detainees to continue pressing the U.N. and the Europeans to file charges. The European nations and/or international tribunals will make formal requests to the Obama administration to have the Justice Department assist them in securing evidence. Holder will piously announce that the “rule of law” requires him to cooperate with these “lawful requests” from “appropriately created courts.” Finally, the international and/or foreign courts will file criminal charges against American officials.

Foreign charges would result in the issuance of international arrest warrants. They won’t be executed in the United States — even this administration is probably not brazen enough to try that. But the warrants will go out to police agencies all over the world. If the indicted American officials want to travel outside the U.S., they will need to worry about the possibility of arrest, detention, and transfer to third countries for prosecution. Have a look at this 2007 interview of CCR president Michael Ratner. See how he brags that his European gambit is “making the world smaller” for Rumsfeld — creating a hostile legal climate in which a former U.S. defense secretary may have to avoid, for instance, attending conferences in NATO countries.

The Left will get its reckoning. Obama and Holder will be able to take credit with their supporters for making it happen. But because the administration’s allies in the antiwar bar and the international Left will do the dirty work of getting charges filed, the American media will help Obama avoid domestic political accountability. Meanwhile, Americans who sought to protect our nation from barbarians will be harassed and framed as war criminals. And protecting the United States will have become an actionable violation of international law.

I’m betting that’s the plan.
Title: Chance to repeal McCain-Feingold
Post by: Crafty_Dog on September 07, 2009, 05:43:26 PM
Public discussion about the character and fitness for office of presidential candidates is at the core of the First Amendment's command that "Congress shall make no law . . . abridging the Freedom of Speech." Yet Congress, in its zeal to impose onerous campaign-finance restrictions, has made political speech a felony for one class of speakers. Corporations and unions can face up to five years in prison for broadcasting candidate-related advocacy during federal elections.

Is outlawing political speech based on the identity of the speaker compatible with the First Amendment? Tomorrow, the Supreme Court will hear arguments to determine the answer to this question.

The case—Citizens United v. Federal Election Commission—involves a 90-minute documentary produced by Citizens United, a small nonprofit advocacy corporation. "Hillary: The Movie" examines the record, policies and character of the former New York senator, now Secretary of State, Hillary Rodham Clinton. The documentary was set to be broadcast during Mrs. Clinton's presidential primary campaign. But the broadcast was banned when the Federal Election Commission declared that the broadcast would violate the 2002 McCain-Feingold campaign finance law.

The government defends this restriction by saying that corporations and unions are uniquely capable of amassing great wealth and must therefore be prevented from overwhelming the voices of others during an election. Relying on a 1990 Supreme Court decision (Austin v. Michigan State Chamber of Commerce), the government characterizes this threat as a "type of corruption" on the peculiar theory that such expenditures do not "reflect actual public support for the political ideas espoused by corporations." Therefore, the government reasons, corporate expenditures "distort" the political process and must be banned.

In crafting McCain-Feingold, Congress acted without proof that such expenditures have any distorting effect on elections. And it responded to a nonproblem with a sledgehammer rather than a scalpel. The current ban on candidate-related speech is not limited to big corporations or powerful unions. It prohibits election advocacy by all unions and all corporations, regardless of size. It even criminalizes speech by nonprofit advocacy corporations such as Citizens United and the ACLU, which cannot conceivably distort or corrupt the political process.

The government claims the authority to suppress corporate and union speech not only in broadcast formats but also in books, pamphlets and yard signs. Put simply, the government's theory is that because wealthy corporations and unions might speak too much during elections, all of them must be silenced.

While the law prohibits even the smallest nonprofit groups from engaging in election advocacy, it exempts wealthy individuals, and it does not restrict the many advantages of incumbency for sitting members of Congress. A limitless loophole is also granted to the media. Thus the corporations that own NBC and ABC (GE and Disney, respectively), and corporations like The New York Times (or News Corp., owner of this newspaper), can express whatever views they want during campaigns.

Loopholes aside, the government's argument that speech may be outlawed because it does not reflect "public support for the ideas expressed" is absurd. It is the very antithesis of free speech.

Hard-charging campaign rhetoric is something that the First Amendment's authors had experienced firsthand. In making the choice between government-approved, polite discourse and boisterous debate, the Founders chose freedom. They did not say Congress could enact finely reticulated restrictions on speech. They said plainly that there could be "no law" abridging the freedom of speech.

The idea that corporate and union speech is somehow inherently corrupting is nonsense. Most corporations are small businesses, and they have every right to speak out when a candidate threatens the welfare of their employees or shareholders.

Time after time the Supreme Court has recognized that corporations enjoy full First Amendment protections. One of the most revered First Amendment precedents is New York Times v. Sullivan (1964), which afforded publishers important constitutional safeguards in libel cases. Any decision that determines that corporations have less protection than individuals under the First Amendment would threaten the very institutions we depend upon to keep us informed. This may be why Citizens United is supported by such diverse allies as the ACLU, the U.S. Chamber of Commerce, the AFL-CIO, the National Rifle Association and the Reporters Committee for Freedom of the Press.

Persons of modest means often band together to speak through ideological corporations. That speech may not be silenced because of speculation that a few large entities might speak too loudly, or because some corporations may earn large profits. The First Amendment does not permit the government to handicap speakers based on their wealth, or ration speech in order somehow to equalize participation in public debate.

Tomorrow's case is not about Citizens United. It is about the rights of all persons—individuals, associations, corporations and unions—to speak freely. And it is about our right to hear those voices and to judge for ourselves who has the soundest message.

Mr. Olson, an attorney at Gibson, Dunn & Crutcher, will deliver the oral argument on behalf of Citizens United before the Supreme Court tomorrow.
Title: Second Amendment Sources
Post by: Crafty_Dog on September 15, 2009, 04:40:39 AM


Title: Interstate Commerce
Post by: Crafty_Dog on September 15, 2009, 07:55:08 AM
Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress's powers only to those granted in the Constitution.

One of those powers—the power "to regulate" interstate commerce—is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.

Unfortunately, a notoriously tendentious New Deal-era Supreme Court decision has given Congress a green light to use the Commerce Clause to regulate noncommercial, and even purely local, private behavior. In Wickard v. Filburn (1942), the Supreme Court held that a farmer who grew wheat just for the consumption of his own family violated federal agricultural guidelines enacted pursuant to the Commerce Clause. Though the wheat did not move across state lines—indeed, it never left his farm—the Court held that if other similarly situated farmers were permitted to do the same it, might have an aggregate effect on interstate commerce.

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison's understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept "regular."

The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.

Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

The same Congress that wants to tell family farmers what to grow in their backyards has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.

That's right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce.

What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution—they are evading it.

Mr. Napolitano, who served on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "Dred Scott's Revenge: A Legal History of Race and Freedom in America" (Nelson, 2009).

Title: Cabin it Within Principled Constitutional Tradition
Post by: Body-by-Guinness on September 16, 2009, 03:08:12 PM
September 16, 2009
The Originalist Perspective
by David F. Forte
WebMemo #2617
An excerpt from The Heritage Guide to the Constitution

Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution--the supreme law of the land--as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a "living document" with no fixed meaning, subject to changing interpretations according to the spirit of the times.

In 1985, Attorney General Edwin Meese III delivered a series of speeches challenging the then-dominant view of constitutional jurisprudence and calling for judges to embrace a "jurisprudence of original intention." There ensued a vigorous debate in the academy, as well as in the popular press, and in Congress itself over the prospect of an "originalist" interpretation of the Constitution. Some critics found the idea too vague to be pinned down; others believed that it was impossible to find the original intent that lay behind the text of the Constitution. Some rejected originalism in principle, as undemocratic (though it is clear that the Constitution was built upon republican rather than democratic principles), unfairly binding the present to the choices of the past.

As is often the case, the debate was not completely black and white. Some nonoriginalists do not think that the Framers intended anything but the text of the Constitution to be authoritative, and they hold that straying beyond the text to the intentions of various Framers is not an appropriate method of interpretation. In that, one strain of originalism agrees. On the other hand, many prominent nonoriginalists think that it is not the text of the Constitution per se that ought to be controlling but rather the principles behind the text that can be brought to bear on contemporary issues in an evolving manner.

Originalism, in its various and sometimes conflicting versions, is today the dominant theory of constitutional interpretation. On the one hand, as complex as an originalist jurisprudence may be, the attempt to build a coherent nonoriginalist justification of Supreme Court decisions (excepting the desideratum of following stare decisis, even if the legal principle had been wrongly begun) seems to have failed. At the same time, those espousing originalism have profited from the criticism of nonoriginalists, and the originalist enterprise has become more nuanced and self-critical as research into the Founding period continues to flourish. Indeed, it is fair to say that this generation of scholars knows more about what went into the Constitution than any other since the time of the Founding. To paraphrase Thomas Jefferson, in a significant sense "we are all originalists" now.

This is true of both "liberal" and "conservative" judges. For example, in United States Term Limits, Inc. v. Thornton (1995), Justices John Paul Stevens and Clarence Thomas engaged in a debate over whether the Framers intended the Qualifications Clauses (Article 1, Section 2, Clause 2 and Article I, Section 3, Clause 3) to be the upper limit of what could be required of a person running for Congress. In Wallace v. Jaffree (1985), Justice William H. Rehnquist expounded on the original understanding of the Establishment Clause (Amendment I), which Justice David Souter sought to rebut in Lee v. Weisman (1992). Even among avowed originalists, fruitful debate takes place. In Mclntyre v. Ohio Elections Commission (1995), Justices Thomas and Antonin Scalia disputed whether the anonymous pamphleteering of the Founding generation was evidence that the free speech guarantee of the First Amendment was meant to protect such a practice.

Originalism is championed for a number of fundamental reasons. First, it comports with the nature of a constitution, which binds and limits any one generation from ruling according to the passion of the times. The Framers of the Constitution of 1787 knew what they were about, forming a frame of government for "ourselves and our Posterity." They did not understand "We the people" to be merely an assemblage of individuals at any one point in time but a "people" as an association, indeed a number of overlapping associations, over the course of many generations, including our own. In the end, the Constitution of 1787 is as much a constitution for us as it was for the Founding generation.

Second, originalism supports legitimate popular government that is accountable. The Framers believed that a form of government accountable to the people, leaving them fundamentally in charge of their own destinies, best protected human liberty. If liberty is a fundamental aspect of human nature, then the Constitution of 1787 should be defended as a successful champion of human freedom. Originalism sits in frank gratitude for the political, economic, and spiritual prosperity midwifed by the Constitution and the trust the Constitution places in the people to correct their own errors.

Third, originalism accords with the constitutional purpose of limiting government. It understands the several parts of the federal government to be creatures of the Constitution, and to have no legitimate existence outside of the Constitution. The authority of these various entities extends no further than what was devolved upon them by the Constitution." n all free States the Constitution is fixd," Samuel Adams wrote, "& as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation."

Fourth, it follows that originalism limits the judiciary. It prevents the Supreme Court from asserting its will over the careful mix of institutional arrangements that are charged with making policy, each accountable in various ways to the people. Chief Justice John Marshall, overtly deferring to the intention of the Framers, insisted that "that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature." In words that judges and academics might well contemplate today, Marshall said,

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if theywere to be used as the instruments, and the knowing instruments, for violating what they swear to support! (Marbury v. Madison)

Fifth, supported by recent research, originalism comports with the understanding of what our Constitution was to be by the people who formed and ratified that document. It affirms that the Constitution is a coherent and interrelated document, with subtle balances incorporated throughout. Reflecting the Founders understanding of the self-motivated impulses of human nature, the Constitution erected devices that work to frustrate those impulses while leaving open channels for effective and mutually supporting collaboration. It is, in short, a remarkable historical achievement, and unbalancing part of it could dismantle the sophisticated devices it erected to protect the peoples liberty.

Sixth, originalism, properly pursued, is not result-oriented, whereas much nonoriginalist writing is patently so. If evidence demonstrates that the Framers understood the commerce power, for example, to be broader than we might wish, then the originalist ethically must accept the conclusion. If evidence shows that the commerce power was to be more limited than it is permitted to be today, then the originalist can legitimately criticize governmental institutions for neglecting their constitutional duty. In either case, the originalist is called to be humble in the face of facts. The concept of the Constitution of 1787 as a good first draft in need of constant revision and updating--encapsulated in vague phrases such as the "living Constitution"--merely turns the Constitution into an unwritten charter to be developed by the contemporary values of sitting judges.

Discerning the Founders original understanding is not a simple task. There are the problems of the availability of evidence; the reliability of the data; the relative weight of authority to be given to different events, personalities, and organizations of the era; the relevance of subsequent history; and the conceptual apparatus needed to interpret the data. Originalists differ among themselves on all these points and sometimes come to widely divergent conclusions. Nevertheless, the values underlying originalism do mean that the quest, as best as we can accomplish it, is a moral imperative.

How does one go about ascertaining the original meaning of the Constitution? All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its legal effect, originalist researchers variously look to the following:

The evident meaning of the words.
The meaning according to the lexicon of the times.
The meaning in context with other sections of the Constitution.
The meaning according to the words by the Framer suggesting the language.
The elucidation of the meaning by debate within the Constitutional Convention. The historical provenance of the words, particularly their legal history.
The words in the context of the contemporaneous social, economic, and political events.
The words in the context of the revolutionary struggle.
The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
Historical, religious, and philosophical authority put forward by the Framers.
The commentary in the ratification debates.
The commentary by contemporaneous interpreters, such as Publius in The Federalist.
The subsequent historical practice by the Founding generation to exemplify the under stood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
Early judicial interpretations.
Evidence of long-standing traditions that demonstrate the peoples understanding of the words.

As passed down by William Blackstone and later summarized by Joseph Story, similar interpretive principles guided the Framing generation itself. It is the legal effect of the words in the text that matters, and its meaning is to be determined by well-known and refined rules of interpretation supplemented, where helpful, by the understanding of those who drafted the text and the legal culture within which they operated. As Chief Justice Marshall put it,

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; -- is to repeat what has been already said more at large, and is all that can be necessary. (Ogden v. Sounders, Marshall, C. J., dissenting, 1827)

Marshall's dialectical manner of parsing a text, seeking its place in the coherent context of the document, buttressed by the understanding of those who drafted it and the generally applicable legal principles of the time are exemplified by his classic opinions in Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Barron v. Baltimore (1833). Both Marshalls ideological allies and enemies, such as Alexander Hamilton and Thomas Jefferson, utilized the same method of understanding.

Originalism does not remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law. Without that, we are destined, as Aristotle warned long ago, to fall into the "rule of men."

David F. Forte is Professor of Law at Cleveland State University and Senior Visiting Fellow at the Center on Religion and the Constitution at the Witherspoon Institute. He is Senior Editor of The Heritage Guide to the Constitution, a clause-by-clause analysis of the Constitution of the United States, from which this selection is taken.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on September 16, 2009, 06:53:37 PM

According to Webster's 1828 dictionary, "regulate" means "[t]o put in good order; as, to regulate the disordered state of a nation or its finances."

"Militia" means "[t]he body of soldiers in a state enrolled for discipline, but not engaged in actual service except for emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country aer the able bodied men organized into companies, regiments, and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations."

At the time the articles of confederation and the constitution were adopted, it was universally accepted that a full time military was extremely dangerous to liberty. They referred to a full time military as a "standing army" or a "regular army."

The phrase "well regulated militia" appears in Article VI of the Articles of Confederation. According to that Article, "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition, and camp equipage."

The Anti-federalists opposed adopting the constitution because they feared it gave the federal government the ability to destroy the militia and create a standing army.

Patrick Henry put this pretty well: "My great objection to [the constitution] is, that it does not leave us the means of defending our rights; or, of waging war against tyrants: It is urged by some Gentlemen, that this new plan will bring us an acquisition of strength, an army, and the militia of the States: This is an idea extremely ridiculous: Gentlemen cannot be in earnest. This acquisition will trample on your fallen liberty ... Have we the means of resisting disciplined armies, when our only defence, the militia is put into the hands of Congress? ... The Honorable Gentlemen who presides, told us, that to prevent abuses in our Government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only sufficient to assemble the people. Your arms wherewith you could defend yourselves are gone ... Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in America. A standing army we shall have also, to execute the execrable commands of tyranny."
Title: Pragmatism, Social Darwinism, Progressivism, and the Living Law
Post by: Body-by-Guinness on September 18, 2009, 10:21:41 AM
The Undoing of American Constitutionalism
How a political revolution begun more than a century ago led to Sonia Sotomayor.

By Richard M. Reinsch

Those who were desperately confused, if not enraged, by candidate Barack Obama’s contention that the ideal federal judge should fashion his opinion in empathy with the more downtrodden and oppressed party in a case should consult Bradley Watson’s Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence to understand how the man who has become president could assert the primacy of personal opinion over law. Watson’s book daringly asks what social Darwinism and pragmatism have to do with the progressivist evolution in American politics and jurisprudence during the 20th and 21st centuries. Together they were, Watson argues, akin to an intellectual tsunami that shaped, developed, and still informs, albeit in evolved modalities, the dominant understanding of the American constitutional order (or lack thereof) held by the judicial, academic, and political classes. Strange as it might seem, Watson convincingly shows how these philosophical schools flowed into the main currents of American political and judicial thinking.

The social-Darwinist ingredient in progressive jurisprudence is the notion of the state as an organic principle, informed by the general will of society and by the particular facts, circumstances, and history of a people. Subject to no fixed limits, eschewing belief in objective justice, the state follows a path of incessant growth and flexibility, limited only by the ever-changing needs of society. As dictated by the laws of progress and evolution, the state moves society along an inevitable ascent. By application of “scientific” expertise and rationalizing administration, government directs this growth. Expressly left behind is Madisonian constitutionalism and its notions of natural rights, limited government, the rule of law, prevention of faction, and vigilance against the possibility of overly centralized and unaccountable government.

Watson marshals the speeches and writings of Theodore Roosevelt and Woodrow Wilson, and the jurisprudence of Justice Oliver Wendell Holmes, among others, as evidence for his claim of the pervasive influence of social Darwinism in the intellectual cocktail that is progressivism. As Wilson demonstrates, the progressives sought to move the energy of government from the democratic branches to the bureaucracy. Insulated from politics and popular opinion, federal bureaucrats would engage in the scientific administration of government — the overriding ethos of progressivism. The expert and, in time, the judge would supply regulations and orders to fill the multiplying and unruly (i.e., unregulated) gaps of modern industrialized society. Thus, the real purpose of politics under progressivism informed by social Darwinism is not justice, or the preservation of personal and economic liberty — those worthless dregs of past history — but the infusion into federal and state governments of the substantive powers needed to achieve the perfection of government administration. 

There was, however, that second element informing progressive thought. Almost seamlessly interwoven with the evolutionary ideal of social-Darwinian ideology, pragmatism equally challenged the fixed understanding of America’s constitutional order. William James — the pragmatist par excellence — brilliantly summarized this school of thought with his statement that ideas “become true just in so far as they help us to get into a satisfactory relation with other parts of our experience.” More succinctly, “The reason why we call things true is the reason that they are true.” Virtually synonymous with the idea that state and society are to be subjected to ongoing experimentalism, pragmatism, like social Darwinism, embraced the idea of ceaseless adaptation and change. It presented the state as the entity most capable of selecting the optimal arrangements for meeting the challenges of new social, political, economic, and technological circumstances. Devastatingly absent was any consideration of the ends or purposes of democratic deliberation. For the pragmatist, the Constitution and its express limits on democratic energy must be negated lest necessary and positive change be wrongly arrested.

For the pragmatist, the importance of democratic thought and choice is not in the considerations of justice or law, not with final causes or transcendent purpose, which informs past understandings and meanings, but pure practicality. Moving with the inherent flux of the times determines the emphasis for law and politics. The truth of ideas and the validity of political and economic movements are now to be found in the actual successes these movements have in achieving practical operations. As Justice Holmes articulated the rationale for the protection of free speech, “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” In response to Justice Holmes’s constitutional nominalism, Watson deftly notes, “If the Constitution — or the presently established constitutional order — is itself neutral or indifferent on this question [i.e., legitimate government], what is the basis for a constitutional ruling in favor of a First Amendment claim?” Indeed, progressivism’s pervasive skepticism ends in denying the philosophical grounding of constitutionalism and its animating principle — the rule of law. This, Watson argues throughout the book, is the damage rendered to American constitutionalism by progressivism and its twinned social-Darwinian and pragmatist components.

Against these apostles of ceaseless adaptation, progress, and organic growth of the state loom the men who framed America’s constitutional order and its underlying philosophy. Watson synthesizes the varying rationales for liberty held by the Founders under the overarching understanding they held of man’s natural rights in his property and person, and the corollary that government must secure these rights and, in turn, defend citizens from the government itself. However, this conception of government as necessary to the protection of man’s natural rights, but also preternaturally dangerous because of man’s vice-ridden passions and propensity to form factions, is simply incompatible with progressivism. Under the latter’s dispensation, the citizen now joins in an undulating partnership with the government, under the administration of experts whose intervention actualizes the liberty and self-development of persons and groups. From this perspective, natural rights are seen more as the negation rather than the fulfillment of freedom. James Madison has been thrown into the dock.

Abraham Lincoln also stands athwart progressive ideology in his attempts to reground American politics on a firmer understanding of the singular dignity of the person. Through the spoken word and through his statesmanship, Lincoln rearticulated the natural basis of republican government, and the goods it must secure and the evils it must crush if it is to endure. Noteworthy is Watson’s contention that after the victory over the slaveholding South, Lincoln’s recovery of the political justice of the Declaration of Independence was rejected by the rising tide of progressivism in the decades following his presidency. The denatured person seen by progressivism requires an unlimited government to deploy the operations and powers necessary to unlock social progress.

The spillover to our time can be seen in Justice Sotomayor’s statement to a group of law clerks that the appellate courts are where policy is made. Justice Sotomayor was merely following her progressive teachers, who have risen to dominance in American law schools and courts. Their continuing attempt to replace constitutionalism now finds its purest and most honest expression with those federal judges who openly equate judicial power with politics and policy. Watson’s scholarship exposes the intellectual stair-stepping that has taken us to the brink of this dangerous precipice.

-- Richard M. Reinsch is a program officer at Liberty Fund, and author of the forthcoming Whittaker Chambers: The Spirit of a Counter-Revolutionary, to be published by ISI Books.
National Review Online -
Title: SCT takes incorporation case
Post by: Crafty_Dog on September 30, 2009, 08:51:08 AM
Court to rule on gun rights, terrorism law

Wednesday, September 30th, 2009 10:04 am | Lyle Denniston |

Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county and city government laws. In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on September 30, 2009, 09:40:10 AM
Cross fingers and knock wood. . . .
Title: Early Constitutional case law
Post by: Crafty_Dog on October 02, 2009, 09:58:16 AM
A friend writes:

ith the very first Congress consisting almost entirely of Federalist (nationalist), and George Washington as President appointing Federalist to all post within his administration, including the Supreme Court, with the first Chief Justice being John Jay, the power grab for the new government began with ease and the new court led the way. The decisions of the court on various cases didn't matter so much but their opinions written on those decisions set the stage for interpreting the Constitution based on their personal understanding and not as to how the Federalist presented it at the ratifying debates or on the understanding of the ratifiers that agreed to it on those terms, this, even though every judge on the first court helped write the Constitution and argued for ratification giving assurance on those same terms.

 An opinion on a relatively unimportant case regarding a grant to a probate hearing on the enforcement of a will in the Connecticut legislature, the 1798 case Calder vs Bull, would stand to set the majority opinion of high court justices till this day. It didn't seem to matter to them that it nullified the power of the Constitution to restrain the Federal government and its court. Justice Samuel Chase, in his opinion said that although the government powers were defined and that the states retain all powers granted them by the people and not denied by the Constitution; the state legislatures were not absolute and without control even if the state's Constitution did not limit their authority.

 Chase said, "There are certain vital principles in our free republican government which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection where of government was established. An act of the legislature (for I cannot call it law), contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority."
Chase had based his opinion on natural law, the principles of free republican government. Any state that violated these principles in passing statutes, according to this opinion, were going against the general principles of law and reason and as such would not be enforceable as law. So who gets to decide if a state violated these principles? The federal courts of course! But it's worse than just that as one justice points out even though he to is a federalist.
Justice James Iredell rightfully blasted Chase with an opinion of his own in which he  said that natural law or its principles were not regulated by any fixed standard and that if Congress or a state passed a statute consistent with the power it had been granted, that no court may declare it void merely because in their judgement it was contrary to natural law. Iredell insisted that the system of written constitutions was what guarded against legislative abuse and that the ultimate corrective was elections. Few judges have heeded this opinion.
During this period the federalist were going back on their assurances about the limited powers of the government. It became so bad that Jefferson and Madison teamed up to get the states to rebel against and resist federal policy that they saw as blatantly unconstitutional. They had to this in secret to avoid prosecution under the Sedition Act of 1798. The Constitution was in the hands of its enemies but the election of 1800 was the corrective.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on October 15, 2009, 08:40:12 AM
Alexander's Essay – October 15, 2009

Our Constitution is on Life Support
"Early to bed, early to rise makes a man healthy, wealthy, and wise." --Benjamin Franklin
That wise old sage, Ben Franklin, was prescient back in 1748, when he issued his simple Rx for success. Unfortunately, the wealth and wisdom of generations of Americans have been progressively supplanted by our central government's exercise of unconstitutional authority.

In regard to wealth, I refer most directly to our government's colossal spending and debt accumulation, and unlawful taxation.

As to wisdom, well, there's not much of that emerging from government-run school systems.

Having already depleted the wealth and wisdom of our great nation, the Obama juggernaut is determined to do likewise to health, that third prong of Franklin's trident. If successful, then we may rightly fear it as a deathblow to the greatest experiment in human history.

Where is Doctor Franklin when we really need him?

Simpletons across the United States and, indeed, the world, are beguiled by the Democrat health scare cacophony. While so much has been said, so too has so little. And, as we approach the seemingly inevitable passage of some such diabolical legislation, almost to a citizen everyone is screaming, "Stop the world, I want to get off!" Indeed, only elitist Democrats are charging full-steam ahead, constituents be damned.

Intentionally lost in all this noise is the Leftist tactic of drowning its opposition in waves of excessive and ever-changing health care minutia. With the devil being so well hidden in the details, this ensures that we remain distracted while Rule of Law is further usurped by the rule of man.

As Patriots, we are summoned to slice through this diversionary blather. And, to obtain proper analysis of this overarching objective, we must seek guidance from our founding documents, the Constitution of the United States of America and its superordinate document, the Declaration of Independence.

In a search of the Constitution, we find that the words "health," "medicine" or "medical" are mentioned -- drum roll please -- not even once: not within the original text, nor within 220 years of amendments. (A search of the Articles of Confederation yields similar results.)

To some, this exclusion indicates that the Founding Fathers were unconcerned about the health of their countrymen. But, supporters of this argument expose their condescension, and it is here mentioned to disabuse them of their disdain. For our Founding Fathers sacrificed so greatly for the birth of our nation -- in both blood and treasure -- that to posit such indifference does a great and grotesque disservice to their honor and their memory.

To others, this exclusion indicates that health care was mercifully omitted since medical care of the 1700s was so "primitive" that the cure often caused more harm than the ailment. They further argue that, given the foresight of modern medicine, our Founders would have surely incorporated universal health care within the Constitution. But, supporters of this argument expose their arrogance, and it is here mentioned to disabuse them of their haughtiness. For the medicine of our Founding Fathers was actually advanced in its day, just as the U.S. medicine of today is advanced, and just as tomorrow it will be thought primitive. This, of course, assumes that we successfully restore Rule of Law.

Alas, we discern seemingly little counsel from the Constitution.

And, as we turn to the Declaration, a search for the words "health," "medicine" or "medical" once more yields exactly zero results. Furthermore, the itemized grievances therein make nary a hint concerning health, even considering the "primitive" conditions discussed above.

Alack, we also discern seemingly little counsel from the Declaration.

However, neither do the Constitution nor the Declaration counsel us with direct verbiage concerning agriculture, textiles, construction and the whole raft of goods and services upon which those everyday necessities of food, clothing and shelter are stationed.

But, the Declaration does aver that all men are created equal, not of outcome but of opportunity; that they are endowed with the right to Life, not a guaranteed good life, not a guaranteed healthy life, but life with all of its miraculous potential; that they are endowed with a right to Liberty, the fusion of freedom and personal responsibility; and that they are endowed with a right to the pursuit of Happiness, the eclectic amalgamation of hopes and dreams and desires and necessities as defined by each individual -- not by faceless, nameless bureaucrats.

Furthermore, the Constitution's Preamble declares that its purpose is to establish Justice, the even-handed application of law to all citizens; to insure domestic Tranquility, the exclusion of class warfare; to promote (not provide) the general Welfare; and to secure the blessings of Liberty, there again, the fusion of freedom with personal responsibility.

So, our founding documents do guide us to proper health care legislation: for it is that which encompasses equality and liberty for consumers and providers alike; that which promotes life above death panels; that which encourages the medical hopes and dreams as defined by each individual; that which constrains, not magnifies, class warfare; and that which secures "the blessings of Liberty, to ourselves and our Posterity."

Anything more than this is an affront to constitutional order and Rule of Law. As Thomas Jefferson so keenly observed: "Were we directed from Washington when to sow, and when to reap, we should soon want bread." And, it takes little thought, or even imagination, to extend his estimation to the current health care debate.

The bottom line is that Article 1, Section 8 of our Constitution, which addresses powers of the legislature, never endowed Congress with authority to regulate or collect taxes for banking, mortgage or automaker bailouts. Neither does it present authority for them to subsidize production or service sectors such as health care. Indeed, James Madison wrote, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents..."

Sadly, not one Democrat bill addresses "health care" so much as it seeks omnipotent centralized government power and control, the currency of the Left. However, the proposals certainly betray the Left's condescension and contempt for Rule of Law, along with their frontal assault upon our Essential Liberty.

Patriot Readers, the U.S. Constitution is on life support. To prevent it from flat-lining, we must exude high dudgeon, we must slice through the Left's onslaught of minutia, and we must surgically endeavor with our every thought and deed to restore a healthy Rule of Law.

Semper Vigilo, Fortis, Paratus et Fidelis!

Mark Alexander
Publisher, PatriotPost.US, with J. Adams Clymer
Title: Bill of Rights Ends at the Front Door?
Post by: Body-by-Guinness on October 22, 2009, 07:56:18 PM
Be a Good Victim
Under current law, the Second Amendment ends at your front door.

By David Rittgers

In August, a man shot two people to death on a bridge near San Francisco. At the moment of the killings, two on-duty Marin County sheriff’s deputies were within 100 yards of the shooter. One was close enough to see the muzzle blast of the shotgun. The police officers, however, did not move against the culprit. One, stuck in traffic, called in a description of the killer’s vehicle as he fled. The other positioned her car to prevent traffic from entering the crime scene.

These two law-enforcement officers did what police officers tell the public to do: Don’t intervene. Get a description of the offender. Call the police. Be a good witness.

Much debate ensued about whether the officers’ behavior was appropriate, but the real tragedy is that the victims of this rampage did not have the legal opportunity to arm themselves. To them, the message was clear: Be a good victim.

In Marin County, the jurisdiction where those two officers work, Sheriff Robert Doyle requires residents to demonstrate “extreme need” before they can get concealed-handgun permits. Among the few who have met this burden are private investigators, jewelry dealers, and a former district attorney.

Ten states still use a system that subjects lawful self-defense to the whim of a functionary such as Sheriff Doyle, a practice known as a “may issue” policy. (Two more refuse to grant concealed-carry permits to anyone.) The decision rests with the local chief law-enforcement officer, who may employ whatever criteria he deems valid — or deny permits for no reason at all. The result is that only those who are wealthy or politically connected are able to secure permits. Sean Penn got one after he claimed that a former employee was stalking him and that he had received a number of crank calls and letters.

This is not the case in most of the nation. Thirty-eight states have “shall issue” permit systems, which essentially require the chief law-enforcement officer to issue permits to everyone who passes background checks and training requirements. Many of these states have established reciprocity agreements, making the permits they issue valid in much of the nation. Years of experience have shown that permit holders are far more law-abiding than the general populace.

The propriety of “may issue” permitting is now being challenged in court on the opposite coast. The District of Columbia maintains a “shall issue” or, more appropriately, a “no issue” policy. After the Supreme Court struck down the District’s ban on handgun possession within the home last year, the District repealed the police chief’s power to issue permits to let gun owners carry their weapons outside the home. Several plaintiffs have filed a lawsuit challenging this refusal to issue handgun-carry permits.

In the Heller decision last year, the Supreme Court affirmed the Second Amendment right of individuals to keep arms in their home and have them in a condition useful for self-defense. The Court stressed that the individual right to arms was not an unlimited one, leaving undisturbed bans on carrying guns into “sensitive places” such as schools and government buildings. The D.C. suit does not challenge this power, but asks the court to recognize that the whole of the District of Columbia cannot be a “sensitive place.”

The District will almost certainly mention that the Heller decision also did not call into question 19th-century bans on concealed carry. This ignores the fact that while concealed carry was considered the mark of a brigand, open carry was accepted and legal. Modern feelings are the reverse; concealed carry is now practiced far more often than open carry. The plaintiffs do not specify the method of carry — open or concealed — merely that the Second Amendment does not stop at your front door.

The lawsuit intends to make the District face reality. Criminals have guns. They brandish them when the police are not on the scene and victims are outside of their homes. The D.C. government should not handicap the honest, law-abiding citizens who wish to carry arms in order to defend themselves.

One of the plaintiffs, Tom Palmer (disclosure: Tom is my colleague at the Cato Institute), once used a handgun to deter a mob of violent aggressors who were yelling death threats at him. Tom’s right, and the right of any other citizen, to arm himself should not be subject to approval by a civil servant who will not be present to protect them. Even if the police are present when someone is being assaulted or killed, they don’t necessarily have a duty to intervene — as evidenced by the praise given to the two Marin County officers by their sheriff after the aforementioned incident.

Just as the Supreme Court affirmed a right to be armed in the home for self-defense, the courts of the District of Columbia should affirm the right of law-abiding citizens to be armed and defend their own lives outside of their homes. Ending “may issue” policies that work to ensure the victimization of average people will make the District, and eventually the nation, a safer and more just place to live.

— David Rittgers is an attorney and decorated former Army Special Forces officer who served three tours in Afghanistan and is now a legal-policy analyst at the Cato Institute.

National Review Online -
Title: The Coast Guard and the 4th Amendment
Post by: Crafty_Dog on October 23, 2009, 08:53:52 AM
Interesting explanation of the basis for the Coast guard's search and seizure authority vs our 4th Amendment rights.....

A warning. If you have no interest in civil liberties, constitutional law, or the unmitigated growth of federal power... don't read the next several paragraphs.

 About six weeks ago, I purchased a 35-foot fishing boat – an Everglades 35CC. I store the boat on a dock behind my house in Miami, where it is properly registered with the state of Florida. It takes me about 30 minutes to reach the ocean through canals maintained by the city of Miami. I've been out ocean fishing three times since I got the boat. On two of those three occasions, I've been threatened, detained, searched, and/or boarded by agents of the federal government without any probable cause of wrongdoing... or even any reasonable suspicion.

These actions were taken against me and my guests with considerable force: The stops involved high-speed boats, helicopters, large caliber automatic weapons, and black-booted officers decked out in SWAT-team like apparel. In the second instance, my boat was boarded and searched. IDs were taken from all eight passengers. We were ordered to stay on the far side of the boat – in the sun – for nearly two hours and treated like suspected drug smugglers while two Coast Guard officers searched every compartment of my boat – including the small tackle box drawers and our personal belongings.

They called the boarding a "safety inspection." And let me tell you... it is scary when heavily armed men are telling you not to make any sudden movements, to get on the far side of the boat. Their hands are sitting on top of their holsters... and you are 30 miles out at sea.


 A safety inspection is supposed to consist of checking life jackets, fire extinguishers, the structural integrity of the boat, the registration, and a few other minor documents, like an oil discharge placard. How could doing this require two hours? Why would doing this require a stop 30 miles out to sea, involving a helicopter, a Coast Guard cutter, and a four-man boarding party? What's reasonable about a "safety" inspection that features black-soled boots marking up nearly every topside surface of a white, brand-new fiberglass boat? Why should our driver licenses have been taken from us?

 You might recall the Fourth Amendment of the U.S. Constitution forbids unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Obviously, boats are not specifically named as a protected class of property... but papers and effects seem to be protected. And there's plenty of case law that has extended Fourth Amendment protections – to some degree – to places other than your home. For example, you can't be pulled over on the highway without some probable cause or some traffic violation. But... we had done nothing wrong. We received no citations whatsoever. We were in a brand new boat, running at 40 knots... clearly, there was no problem with the safety of our vessel.

Our new "friends" on USCGC 87318 Bluefin

 So the question I had when I was eventually able to return home, after dark, following our two-hour "safety inspection" was: How in the hell do these guys get away with these actions?

Well, it turns out the Coast Guard and other customs agents have more power to search and seize than any other kind of law enforcement. The reason why dates back to 1790, when the Coast Guard was part of the Treasury Department. Back then, the inspections had nothing to do with safety – they were revenue cutters. The Coast Guard was looking for smugglers because, at the time, the main sources of revenue for the federal government were tariffs. Congress passed a law that would seem to violate the Fourth Amendment directly because it had to ensure its ability to collect tariffs:
That it shall be lawful for all collectors, naval officers, surveyors, inspectors, and the officers of the revenue cutters herein after mentioned, to go on board of ships or vessels in any part of the United States, or within four leagues of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests aforesaid, and of examining and searching the said ships or vessels...
 Here's the fascinating part... The Coast Guard's role as revenue cutters was abandoned in 1915 with the advent of income taxes. The Coast Guard finally left the Department of the Treasury in 1967. It is now a part of the Department of Homeland Security. And yet, despite the obvious and well-documented changes in the role of the Coast Guard and the nature of its mission, the Supreme Court continues to deny U.S. citizens their Fourth Amendment rights, out of deference to the Coast Guard's former unique duties (see United States v. Villamonte-Marquez, 1983).

The government, which wouldn't ordinarily be able to stop, search, and seize any American-flagged vessel anywhere in the world at any time, is now empowered to do so simply because, 100 years ago, this power was necessary for tax revenues. So guess who is now routinely assigned to duty aboard Coast Guard cutters? DEA agents.

And yet... the Supreme Court continues to pretend these random searches are merely for "safety inspections." It is yet another case of the Constitution simply being ignored.

 Now... you might say, so what? We like the Coast Guard catching drug smugglers. OK, fine. Just change the Constitution. There is a legal process for doing so. But you're fooling yourself if you think the Coast Guard is actually doing any good. The price of drugs has been falling ever since the "War on Drugs" was announced. We keep spending more money trying to stop drug smuggling... but what actually happens out there?

 The Coast Guard has been turned into a weapon against the citizens of the United States. What's the Coast Guard actually doing? Why would they inspect a brand new boat? A boat that's obviously not involved in any large-scale drug smuggling and is loaded up with expensive fishing equipment and top-of-line Yamaha engines? Here's a possibility: If they find a single joint, they can seize the boat.

 What's happened to the job of actually defending and protecting the people of the United States? In January 1984, just as the Coast Guard's new role as the top drug hound was being expanded, it began refusing ALL requests to help stranded boaters. Taxpayers fund the Coast Guard... which now refuses to help boaters in trouble and instead preys on boat owners at every possible opportunity. Maybe we shouldn't just ignore the Constitution.
Title: Where in the C. is the power to , , ,?
Post by: Crafty_Dog on October 23, 2009, 09:10:12 AM
second post of the AM

Patriot Post
Digest · Friday, October 23, 2009

The Foundation
"[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments." --Alexander Hamilton

Pelosi: "Are you serious?"Government & Politics
A Serious Question
We have known for many years that Democrats view the Constitution as an obstacle to their goals, not as something to be revered or upheld -- despite their repeated oaths to do just that. And as Mark Alexander warned last week, our Constitution is on life support.

More evidence of the trauma inflicted by our elected "representatives" surfaced this week when asked the only truly relevant question in the health care debate: Where in the Constitution is the authority to mandate that Americans buy health insurance?

Sen. Patrick Leahy (D-VT) was befuddled and deflected: Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?

Leahy: We have plenty of authority. Are you saying there is no authority? I'm asking-

Leahy: Why would you say there is no authority? I mean, there's no question there's authority, nobody questions that.

While Leahy's answer is both defensive and outrageously arrogant, in a sense, he's right: Not enough voters question the constitutional authority for anything Congress does. Even Republicans too often simply declare, "Me too, only a little less," instead of abiding by the Constitution.

The interviewer persisted, however, and again asked the question. Leahy dodged, saying, "Where do we have the authority to set speed limits on an interstate highway? The federal government does that on federal highways." He then walked away.

So to get this straight, Leahy defended Congress' unconstitutional attempt to take over one sixth of the U.S. economy by citing another unconstitutional law that was justly repealed 14 years ago.

House Majority Leader Steny Hoyer (D-MD) answered the question by saying, "Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect [a mandate that individuals must buy health insurance]. The end that we're trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility."

On the contrary, in 1994, the Congressional Budget Office reported that a mandate forcing Americans to buy insurance would be an "unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States."

According to Hoyer and his accomplices, however, the General Welfare Clause in the Constitution empowers Congress not only to "promote the general Welfare," but to provide it, demand it and enforce it.

But House Speaker Nancy Pelosi (D-CA) was the worst offender. "Madam Speaker," asked, "where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Her brief reply spoke volumes about the Left's contempt for the Constitution and the Rule of Law: "Are you serious? Are you serious?" She then ignored the question and moved on to the next one. Her spokesman later added, "You can put this on the record: That is not a serious question. That is not a serious question."

Even in light of the current recession, we live in a day of unprecedented prosperity and, as a result, we have become complacent. Unfortunately, the likes of Leahy, Hoyer and Pelosi, who mock the Constitution instead of keeping their oaths, have almost completely robbed us of the "Blessings of Liberty" which our Founding Fathers pledged "our Lives, our Fortunes and our sacred Honor" to defend.

Though questions concerning constitutional authority are finally being asked inside the Beltway, they have been asked with ever-louder voices across the nation since Ronald Reagan reinvigorated that debate. Of course, since the last election, the national debate chorus has become much more unified.

For example, in The Patriot's home state of Tennessee (which Al Gore claims as "home" but which gave its electoral votes to Bush, twice, and then to McCain), there is a 10th Amendment battle underway, and not a minute too soon.

State Republicans are organizing a state sovereignty campaign in opposition to the federal government's abuse of states' rights. This week, a legislative committee approved a motion to invite representatives from the legislatures of the other 49 states to join a "working group ... to enumerate the abuses of authority by the federal government and to seek repeal of its assumption of powers."

Can you say, "Constitutional Convention"?

Predictably, Obama's state cadre of Democrat sycophants are huffing and puffing. State Democrat Chairman Chip Forrester says, "It's unfortunate that Republican members of the state Legislature have jumped on this crazy train. This is nothing short of lunacy. The Tea Party organizers and their ultra-right wing cronies began this ridiculous issue to disrupt civil debate about how to move this state and nation forward. I hope they are not suggesting we fight another Civil War."

No, we should give the Convention a chance before taking up arms. And if it comes to the latter, I suggest Mr. Forrester say goodbye to the sun and slither down a very deep hole.
Title: re. Where in the constitution...power to mandate Americans buy health insurance
Post by: DougMacG on October 23, 2009, 06:12:06 PM
"Where in the Constitution is the authority to mandate that Americans buy health insurance?"

I passed that excellent question to my liberal senators, Amy Klobuchar and the Honorable Al Franken as well as Congressman Keith Ellison and one friendly Republican.  Will keep the board informed of any interesting answers.

Maybe the federal authority to mandate health insurance is hidden in between the federal power to forbid states from limiting the right to kill your young and the search exemption for pleasure crafts.  :-(

A constitutional convention is a bad idea in a climate where the existing provisions are already ignored and when the opponents of limited government are clearly in power. 

Instead it seems to me that each time federal authorities step on the constitution we should push for an up or down vote on repealing that constitutional protection, and see where they stand.  For example, McCain-Feingold should have been coupled with a demand for congress to vote yea or nay on repeal of the 1st amendment.  Couple Coast Guard funding with a demand for a vote to repeal the 4th amendment, and health reform with a demand for a vote for or against repealing the 10th.  If 2/3 of the House and 2/3rds of the Senate vote repeal, off it goes to the states.  I'm assuming that most people like constitutional limits on power, but like Pelosi - they just forget we have them.
Title: WSJ: Forfeiture
Post by: Crafty_Dog on October 24, 2009, 04:29:20 AM
With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture.

By now, the individual cases in Illinois have been resolved with either a forfeiture or a return of the property, leading the Justices to question during oral argument whether the case should be dismissed as moot. Whether the court considers the details in Alvarez, the court will soon need to resolve when detention of property violates due process.

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor's office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern.

The numbers can be hefty. In 2008, the Chicago Police Department bragged it took in some $13.5 million in asset forfeitures, nearly double what it had seized the previous year. Golly. Inquiring minds will wonder if there were actually double the situations that called for asset forfeiture last year, or if the Chicago PD is simply more assertive about detaining property when the city is short of money.

The case comes from the Seventh Circuit Court of Appeals, which vindicated the citizens when it ruled that the time between forfeiture and judicial hearing presented an unconstitutional delay. The court required the state to provide property owners with an informal hearing to establish whether there is probable cause to continue to keep the property in custody.

The question for the Supreme Court is whether to uphold what's known as the "Mathews standard," a well-worn method by which courts determine how individuals may challenge government "takings." The standard requires courts to take into account the individual harm caused by a property seizure as well as the risk of mistakes and the cost of additional hearings or other procedures. Illinois prefers a looser standard, allowing the state to continue to delay due process.

The Illinois law compares awkwardly with the federal Civil Asset Forfeiture Reform Act of 2000. As the Cato Institute details in an amicus brief, while the two laws may establish comparable time frames, federal civil forfeiture actions can often run into the hundreds of millions of dollars, a level of cost and complexity well beyond the property at issue under the Illinois drug law. The better match-up is with other state forfeiture laws, and here Illinois performs miserably, taking many times as long to provide a hearing as the likes of Florida, Iowa, Arizona, Missouri and Texas.

We're all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on October 30, 2009, 08:39:22 AM
Last week's announcement that "Pay Czar" Kenneth Feinberg slashed compensation for executives at seven large financial firms by an average of 50% stunned Wall Street, stoked the fires of populist resentment, and troubled economists. Will this government-mandated pay cut drive the most talented professionals away from these companies, endangering their recovery? Does it augur further politicization of economic decisions?

Lost in the arguments over economics and political theory, however, is a more basic question: Was this action constitutional?

Mr. Feinberg's ukase is the most prominent example (and not just by the Obama administration) of the exercise of power by an individual unilaterally appointed by the executive branch without Senate confirmation—and thus outside the ordinary channels of Congressional oversight. Earlier this month, the Senate Subcommittee on the Constitution conducted hearings into the constitutional basis for this practice, which many see as an end-run around checks and balances. The Obama administration declined Sen. Russ Feingold's (D., Wisc.) invitation to send a witness to the hearing to explain the constitutional basis for its various "czars."

So who is Kenneth Feinberg, and where did he get the power to set pay for executives at private firms?

As part of the hastily enacted and seldom-read legislation establishing the Troubled Asset Relief Program (TARP), Congress authorized the Secretary of the Treasury to "require each TARP recipient to meet appropriate standards for executive compensation." To carry out this task, last June the Treasury promulgated an emergency "Interim Final Rule," waiving ordinary requirements for a public comment period.

As part of this emergency rule, Treasury Secretary Timothy Geithner created the office of "Special Master" for compensation, delegated his TARP authority to set compensation standards to this officer, and appointed Mr. Feinberg (a lawyer and mediator) to this position, without obtaining Senate confirmation.

Therein lies the problem. The Appointments clause of the Constitution, Article II, section 2, provides that all "Officers of the United States" must be appointed by the president "by and with the Advice and Consent of the Senate." This means subject to confirmation, except that "the Congress may by Law vest the Appointment" of "inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

There is no doubt that Mr. Feinberg is an "officer" of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as "any appointee exercising significant authority pursuant to the laws of the United States." Mr. Feinberg signed last week's orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of "significant authority" pursuant to an Act of Congress. He is not a mere "employee," acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

While somewhat more disputable, Mr. Feinberg's is probably an "inferior" officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so. On the contrary, it vested the authority to implement TARP's compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an "officer" properly appointed "by and with the advice and consent of the Senate."

The Supreme Court observed in Buckley v. Valeo that the provisions governing appointments under the Constitution reflect more than "etiquette or protocol." They embody the Founders' conviction that all power under U.S. laws must be exercised by officers with constitutional authority.

The Founders understood that the president and heads of the executive departments could not single-handedly carry out the law, so they required Senate confirmation as what the Federalist Papers call "an excellent check" on abuse or favoritism by the president. Yes, there are some offices so inferior that this check may be eliminated—but it is for Congress to judge which ones these may be. Congress and Congress alone has power to dispense with the safeguard of the confirmation process.

The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg's executive compensation decisions were unconstitutional.

Mr. McConnell is on the faculty of Stanford University Law School, director of its Constitutional Law Center, and a senior fellow at the Hoover Institution. He was a federal judge on the 10th Circuit Court of Appeals from 2002-2009.
Title: Kelo
Post by: Crafty_Dog on November 09, 2009, 04:02:18 PM
Pasting here BBG's post from the Libertarian thread:

fizer abandons site of infamous Kelo eminent domain taking

By: Timothy P. Carney
Examiner Columnist
11/09/09 1:47 PM EST

The private homes that New London, Conn., took away from Suzette Kelo and her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of eminent domain.

But now Pfizer, the drug company whose neighboring research facility had been the original cause of the homes' seizure, has just announced that it is closing up shop in New London.

To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost. Five justices found this redevelopment met the constitutional hurdle of "public use."

The Hartford Courant reports:

Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday....

Pfizer is now deciding what to do with its giant New London offices, and will consider selling it, leasing it and other options, a company spokeswoman said.

Scott Bullock, Kelo's co-counsel in the case, told me: "This shows the folly of these redevelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain."
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on November 09, 2009, 08:07:47 PM
Amazing and appalling that these public officials were in such a hurry to take these homes and that now, a decade later, the project will not be built.

Your home is your castle.  You are constitutionally protected against unreasonable search.  But condemnation, taking of the title and bulldozing can be done simply in the name of economic favoritism according to Anthony Kennedy siding with all the 'liberals' on the court.
Title: Ant--federalist papers
Post by: Crafty_Dog on November 13, 2009, 08:47:01 AM

A friend likes this one in particular
Title: WSJ: A teachable moment
Post by: Crafty_Dog on November 14, 2009, 05:12:39 AM
New York

Seth Lipsky has a knack for seeing the bright side of things. A nearly 20-year veteran of this newspaper, including its editorial page, he cheerfully acknowledges the obvious: This is far from a golden age of free-market conservatism. Of President Obama, he tells me over lunch, "I sense that he has a very leftist, socialist-oriented worldview."

Yet this makes Mr. Lipsky anything but grim: "I for one find this very exciting. . . . We're just at a great moment."

Why? Because, he says, "America is in what I call a constitutional moment." Mr. Obama's efforts to expand government power raise basic questions about the constitutional limits of that power. "The enumerated-powers argument is enormous," Mr. Lipsky says. "It's just enormous, the ground that is open for contest here. . . . Right now, we're at a moment where we're not going to be able to turn to either the Congress or the executive branch for help on this." He believes "the only defense now, the only tool we have now, is the Constitution. That's why I call it a constitutional moment, as opposed to a political moment."

That makes it an auspicious moment for Mr. Lipsky's new book, "The Citizen's Constitution: An Annotated Guide." The U.S. Constitution is a brief document, taking up just 42 pages in a popular pocket-size edition from the Cato Institute. Mr. Lipsky expands it to 287 pages of 5 by 8 inches, by way of 327 lengthy footnotes in which he discusses each and every constitutional clause in the context of history, case law and current events. There are an additional 36 pages of bibliographic references, making it the only book I've seen in which the footnotes have endnotes.

Mr. Lipsky doesn't remember exactly when he thought of the idea, but he believes it was in the late 1980s. "I got into an argument over abortion and was talking to someone about the right to privacy," he recalls. "I looked at a pamphlet the government had issued with a text-only edition of the Constitution, and I realized I couldn't find the word 'privacy' in the Constitution. I began to think about a better edition." Mr. Lipsky's edition has an index, where the listing for "privacy, right to" directs the reader to the chapters on the Third, Ninth and 14th amendments.

As a newspaperman for 40-plus years—in addition to working for the Journal, he founded two papers of his own—Mr. Lipsky has built a career on the First Amendment. But his enthusiasm extends as well to the preamble, the original seven articles and the 26 other amendments.

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Zina Saunders
 ."For years I've been sending memos to people who worked for me—desk editors, reporters, editorial writers—constantly trying to raise their consciousness about the usefulness of the Constitution in editorial work," he says. "Usually these memos that I would send would be simple memos, like, 'Where the hell does the Congress get the power to do that?' or, 'The New York Sun will not carry a dispatch about the Second Amendment which does not quote Justice Story as saying the Second Amendment is the palladium of our liberties.'"

In 1968, after graduating from Harvard, Mr. Lipsky took a reporting job at the Anniston Star in Alabama. He was there just seven months before he was drafted and sent to Vietnam, but it was long enough to provide a formative experience. He visited Frank Johnson, then a federal district judge, who had been a member of the three-judge panel that ordered the desegregation of Montgomery buses after Rosa Parks's arrest. Johnson also presided over Lee v. Macon County, a school-desegregation case that began in 1963.

He told Mr. Lipsky about the trial: "The school board was ready to accede when Gov. [George] Wallace heard about it and ordered them not to. So Johnson gets [Wallace] into court, and he says, 'On what basis are you objecting to this order?' [The governor] says, 'Well, I'm the ex officio chairman of the state board of education, and under that authority, I'm telling them not to integrate the schools.'

"Johnson says, 'As ex officio chairman of the state board of education, you have the power to tell the school board of Macon County, Alabama, that they can't integrate the school?' And the governor says, 'Yes, your honor, I do.' The judge says, 'Well, then, I'm ordering you to integrate all 67 counties in Alabama.'"

In Vietnam, Mr. Lipsky worked as a combat reporter for Pacific Stars and Stripes. Returning to civilian life, he joined the Journal in Detroit, with later postings in Hong Kong, New York and Brussels. He left in 1990 to start an English-language weekly edition of the Forward, a venerable Yiddish newspaper. In 2002, he founded the daily New York Sun—or rather he revived it, the original Sun having folded in 1950. The new Sun attracted a small but influential readership and gave many aspiring writers their start. It ceased publication last year, although Mr. Lipsky and a small stable of writers still publish occasional stories at

The optimism that drove Mr. Lipsky to start a daily newspaper in the Internet age also informs his view of the prospects for American governance. "One of the wonderful things about the Constitution is that anybody can play," he says. "Ordinary people asking simple questions have affected the country in enormous ways using this document. . . . It's just astounding the way individual predicaments and problems are used by the [Supreme] Court to lay down broad principles in the country."

To prove his point, he cites examples from the 1930s, the 1960s and the current decade.

The 1935 case of Schechter Poultry Corp. v. U.S. was decided at a time when the liberal political juggernaut looked even more unstoppable than today. Mr. Lipsky describes the facts: Enforcing the National Industrial Recovery Act, which gave the president vast powers to regulate business, "government thugs went into the kosher butcher shop of the Schechter family in Brooklyn, and they arrested its proprietor on criminal charges."

Among the charges: permitting a housewife "to pick which chicken she wanted." This measure provoked some levity during oral arguments at the Supreme Court: "The judges are asking a question about, 'How is the housewife supposed to pick out her chicken when she can't look at it?' Schechter's lawyer reaches over his shoulder into an imaginary cage and starts pitching around for a chicken, and the Supreme Court started laughing."

The justices ruled unanimously in Schechter's favor and declared the act unconstitutional. "They ended the New Deal," Mr. Lipsky says. Then, with more feeling: "They ended the New Deal!" (This overstates the case somewhat. The court later upheld the Social Security Act and the National Labor Relations Act.)

Gideon v. Wainwright (1963) "involved this guy who was arrested in Florida for robbing a poolroom. He goes into the court and says, 'The Supreme Court says I have a right to a lawyer.' The judge says . . . something to the effect of, 'Not in the state of Florida, you don't.' He gets convicted; he gets sent to prison. While he's in prison, he goes to the prison library. This derelict basically writes an appeal to the Supreme Court . . . in pencil and paper—a pauper's petition that says, 'I have a right to a lawyer.' The Supreme Court notices it, assigns Abe Fortas"—who himself joined the court in 1965—"to defend him. He wins the right to a lawyer for everyone accused of a crime in America. The name of Clarence Earl Gideon will be remembered as long as there is a law."

Last year's District of Columbia v. Heller, in which the court held that the Second Amendment protects an individual right to own firearms, exemplifies Mr. Lipsky's point that the language of the Constitution retains its power even when long ignored. "We've had 200 years, and nothing's ever been done about this," he says. "For 50 of the 200 years, the New York Times has been sneering at the idea of an individual right, and everybody's been talking about how this right belongs to the 'militia.'"

Yet by carefully analyzing the language of the Second Amendment, the court cast aside that musty conventional wisdom. Mr. Lipsky, who describes himself as "a partisan of the plain-language school of the law," applauds not just the result but the method the justices, in an opinion by Antonin Scalia, employed to reach it: "They really get into the language. I mean, the actual grammar, the sentence structure, the subordinate and not-subordinate clauses, which—forgive me, but I've been arguing for a generation and a half as an editorial writer, the plain language of this thing is plain."

Although anybody can play, not everybody can win. In 2003, the high court ruled against Susette Kelo and allowed the city of New London, Conn., to seize her house under eminent domain and turn the land over to private developers.

It's just unbelievable, that case," Mr. Lipsky says—and all the more so in light of the latest development, or rather the lack of development. On Monday, Pfizer Inc., which was to have built offices on the now-barren site, announced that it was leaving New London altogether as part of a consolidation move.

Such disappointments notwithstanding, Mr. Lipsky's passion for the Constitution is a tonic for political depression. If ObamaCare does become law, to take an especially worrying example, it isn't hard to imagine a lot of Americans facing "individual predicaments," including threats to their lives from government rationing. It's some comfort to think they'll be able to petition for a stay—and to demand an answer to the question in that old Lipsky memo: "Where the hell does the Congress get the power to do that?"

Mr. Taranto, a member of The Wall Street Journal's editorial board, writes the Best of the Web Today column for
Title: McDonald v. Chicago Brief . . .
Post by: Body-by-Guinness on November 17, 2009, 09:40:38 AM
. . . can be found here:
Title: Originalist Revolution?
Post by: Body-by-Guinness on November 17, 2009, 10:23:14 AM
Second post.

Heller Counsel Argues for an Originalist Revolution
Posted By Ilya Shapiro On November 17, 2009 @ 8:54 am In Law and Civil Liberties | Comments Disabled

Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief [1] in the case that seeks to apply that right to the states, McDonald v. City of Chicago.  (Cato earlier filed a brief [2] supporting Alan’s cert petition, the background to which you can read about here [3].)

The question presented in this case is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.  Remarkably, only 7 of the brief’s 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been “incorporated” against the states.  Indeed, the brief argues that the Due Process Clause “has incorporated virtually all other enumerated rights” and so there is no reason to make the Second Amendment an exception.

The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873.  Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named “substantive due process” doctrine — and it remains a bugaboo for legal scholars of all ideological stripes.  Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living.

Understandably, libertarians are excited at the prospect of Privileges or Immunities’ revival.  But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.).  I believe this to be an overstated threat from the perspective of constitutional interpretation — as opposed to legislation – and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point.  (The article, titled “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” will shortly be up on SSRN [4], but for now you can read the abstract/introduction here [5].)

In any event, P or I (as it’s known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But it’s ambitious to argue this way rather than settle for the traditional jurisprudence.  As Orin Kerr says at the Volokh Conspiracy [6], “It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.”

For further discussion of Alan’s McDonald brief — which Cato will be supporting with an amicus brief next week – see Lyle Deniston’s write-up [7] at SCOTUSblog.

Article printed from Cato @ Liberty:

URL to article:

URLs in this post:

[1] his brief:
[2] a brief:
[3] here:
[4] on SSRN:
[5] here:
[6] at the Volokh Conspiracy:
[7] Lyle Deniston’s write-up:
Title: McDonald vs. Chicago-2
Post by: Crafty_Dog on November 17, 2009, 01:42:30 PM

This is quite remarkable.  I hope you will continue to monitor this case and its issues and share here.

Thank you.
Title: Some of the Early Handicapping
Post by: Body-by-Guinness on November 18, 2009, 08:15:21 AM
How Will the Court Vote on “Incorporating” the Second Amendment?
Posted By Ilya Shapiro On November 18, 2009 @ 10:37 am In Government and Politics, Law and Civil Liberties | Comments Disabled

Yesterday I described [1] the brief [2]Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court — asking the Court to apply the individual right to keep and bear arms to the states.

Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions [3] of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause.  (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.

As George Will would say: Well. Orin could turn out to be right, but I think his analysis is too simplistic. I was just about to write my response when I saw that Josh Blackman, with whom I have a law review article [4] forthcoming on these issues, already said it best in the comments to Orin’s post [3]:

First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Finally, fellow Volokh conspirator Randy Barnett (and Cato senior fellow) also disagrees with Orin, offering this perspective [5]:

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

In short, Orin’s legal realism/conventional wisdom may turn out prescient — and all the rest of us are engaged in a quixotic originalist/libertarian crusade [6]– but I’ll put my money [7] elsewhere.

Article printed from Cato @ Liberty:

URL to article:

URLs in this post:

[1] described:
[2] brief :
[3] sketched out his predictions:
[4] a law review article:
[5] this perspective:
[6] originalist/libertarian crusade :
[7] put my money:
Title: NYT: GPS and the 4th
Post by: Crafty_Dog on November 23, 2009, 04:48:03 AM
Tis a rare event that I post a NYT editorial in agreement!


GPS and Privacy Rights Recommend
Send To Phone
LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalinkPublished: November 22, 2009
A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.

Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all.

The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper.

Lower courts have reached different conclusions. A panel of the Chicago-based United States Court of Appeals for the Seventh Circuit ruled in 2007 that a warrant is not required for remote surveillance by a GPS device, although it said that if the police began to use the technique on a large scale it might violate the Fourth Amendment.

The highest courts of three states — New York, Oregon and Washington — ruled the opposite way, that their state constitutions prohibit the police from installing GPS devices without a warrant. The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

As technology advances, government will continue to acquire new and more efficient ways of monitoring people. It is critical that the privacy rights guaranteed by the Fourth Amendment keep up with those advances.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on November 23, 2009, 09:45:30 AM
Should a warrant be required to physicallly surveil a suspect? If not, why? What's the difference?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on November 23, 2009, 03:04:24 PM
What's the difference?

Benefit/cost analysis. Physical surveillance is so labor intensive that the powers that be are inspired to commit resources in a sensible fashion. GPS monitoring is comparably cheap and so easy to deploy that there is little incentive to select targets narrowly.

I like check and balances. Surveillance has 'em. Not aware of many where GPS is involved.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on November 23, 2009, 09:36:34 PM
American law enforcement is being hollowed out as we speak. Lots of veteran investigators are pulling the pin and taking their institutional knowledge with them and those that remain are being put back into uniform. As a result, only the low hanging fruit of stupid street criminals will face investigation and complex/organized crime will face little to no prosecution.

Surveillance is how you will tend to establish probable cause that a crime was/is being committed. You can raise the bar so that all but the most basic police services are impossible to provide. It's good news for the real world Tony Sopranos/Avon Barksdales out there.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on November 23, 2009, 10:41:14 PM
Disagree that the bar is being raised in this case.  Here the question presented is whether surveillance capabilities can be vastly expanded and permanently accelerated by technology to where the State can keep track of all of us all the time.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on November 23, 2009, 11:00:26 PM
What state? No matter the technology involved, it boils down to flesh and blood humans doing the job. Now more than ever, there are less doing law enforcement and greater demands on those doing the job. My state invests little in law enforcement in the best of times, as a result, outlaw motorcycle gangs have set up shop here as they discuss how it's a safe state from them to operate in.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on November 23, 2009, 11:26:40 PM

A recent poll by the Police Executive Research Forum found that more than half the agencies questioned had been "bracing for funding cuts during the upcoming year."
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on November 24, 2009, 02:35:19 AM
Do you see no problem with THE State having a permanent record of where everyone goes and has gone?

Would YOU want to run for office to challenge the powers that be if you knew they could look up everywhere you go and had gone? 

Have you ever heard of the politicis of personal destruction?

Would you want President Obama and his vast left wing conspiracy with this knowledge about you?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on November 24, 2009, 06:40:03 AM
Do I want a GPS tracker on everyone's car? No. For law enforcement purposes, it would normally be used as a tool to assist in a physical surveillance, not a substitute for "tailing" a suspect in a crime. You need to be able to testify that your suspect was the driver of the car at the time the car was used in a criminal act. Otherwise your surveillance is worthless because of the "soddi" defense.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on November 25, 2009, 08:29:53 AM
What do you make of this?

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on November 25, 2009, 03:18:24 PM
The US has laws that forbid such things, and rightly so.

While intelligence plays a key role in law enforcement operations,
history tells us that it can also be the instrument of abuse if
such operations are not properly organized, focused and directed.
Particularly during times of national emergency, one must be
particularly vigilant to prevent aggressive enforcement and intelligence
gathering from becoming incursions upon constitutional
rights. Aggressive intelligence gathering operations that resemble
fishing expeditions have been employed improperly in the
past to garner sensitive or confidential information on individuals
for whom there is no reasonable suspicion of criminal activity.
Once documented, such information can develop a life of its
own if sufficient safeguards are not built into screening, review
and management of intelligence files. If passed on to other law
enforcement agencies as intelligence, it can form the basis for
abuse of civil liberties and potential civil liability.
In the same manner, intelligence operations are misguided
that directly or indirectly gather information on persons based
solely on their dissident political activities or views, because they
espouse positions or philosophies that are perceived to threaten
conventional social or political doctrine, traditionally accepted
social mores or similar societal values or institutions, or because
they have cultural connections with terrorists. Use of law
enforcement intelligence resources to intimidate, inhibit or suppress
such activities or harass such individuals under the pretext
of legitimate police concern for maintaining social order are at
best misguided and, in the worst case scenario, constitute a threat
to the principles of law enforcement in a democratic society.
Additionally, misguided intelligence gathering is a waste of valuable
resources that are desperately needed to ferret out wrongdoers
and persons who pose real threats to national and local
Title: WSJ: NY dunks property rights
Post by: Crafty_Dog on November 28, 2009, 07:03:22 AM
New York judges served up what basketball fans call a facial on Tuesday, when an appellate court ruled that the state may seize homes and small businesses in Brooklyn for the benefit of a private developer and the New Jersey Nets. The decision represents a backward step for the effort to protect property rights at the state level since the Supreme Court's 2005 decision in Kelo v. New London.

The case, Goldstein v. New York State Urban Development Corporation, dealt with plans by developer Forest City Ratner to build a new arena for the Nets as well as snazzy apartments and offices on land currently occupied by homes and businesses. To make way for the sports complex, the state declared the property "blighted" and used its power of eminent domain to hand it to the developer.

Such unabashed takings have an unfortunate history in New York state, where the political class has a habit of using its powers on behalf of well-connected private interests. Caught under the wheels are average citizens whose only recourse is to try to defend their property rights in court.

So much for that. In allowing the property seizure, the Court of Appeals dodged some of the central challenges to the condemnation, including whether the Empire State Development Corporation's designation of blight in the Atlantic Yards area was applied after the stadium project had already been planned, making it a "pretext." Nor did the court take on the question—at the heart of eminent domain law since Kelo—whether economic development may be considered a public use under the New York Constitution.

Instead, the majority argued that because the state had designated the area as blighted, the takings were therefore a "public use," and it was not the place of the court to interfere. Nevermind that the determination of blight was based largely on a study funded by . . . the aspiring developer.

Courts in New York have been famously hostile to eminent domain challenges, but 43 states have adjusted their laws since Kelo to provide stronger protections for property owners. The New York ruling vindicates Justice Sandra Day O'Connor's prediction in dissent in Kelo that "the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." Q.E.D.
Title: Sprint Provides LEOs Locational Data
Post by: Body-by-Guinness on December 01, 2009, 04:40:37 PM
Surveillance Shocker: Sprint Received 8 MILLION Law Enforcement Requests for GPS Location Data in the Past Year
News Update by Kevin Bankston
This October, Chris Soghoian — computer security researcher, oft-times journalist, and current technical consultant for the FTC's privacy protection office — attended a closed-door conference called "ISS World". ISS World — the "ISS" is for "Intelligence Support Systems for Lawful Interception, Criminal Investigations and Intelligence Gathering" — is where law enforcement and intelligence agencies consult with telco representatives and surveillance equipment manufacturers about the state of electronic surveillance technology and practice. Armed with a tape recorder, Soghoian went to the conference looking for information about the scope of the government's surveillance practices in the US. What Soghoian uncovered, as he reported on his blog this morning, is more shocking and frightening than anyone could have ever expected

At the ISS conference, Soghoian taped astonishing comments by Paul Taylor, Sprint/Nextel's Manager of Electronic Surveillance. In complaining about the volume of requests that Sprint receives from law enforcement, Taylor noted a shocking number of requests that Sprint had received in the past year for precise GPS (Global Positioning System) location data revealing the location and movements of Sprint's customers. That number?


Sprint received over 8 million requests for its customers' information in the past 13 months. That doesn't count requests for basic identification and billing information, or wiretapping requests, or requests to monitor who is calling who, or even requests for less-precise location data based on which cell phone towers a cell phone was in contact with. That's just GPS. And, that's not including legal requests from civil litigants, or from foreign intelligence investigators. That's just law enforcement. And, that's not counting the few other major cell phone carriers like AT&T, Verizon and T-Mobile. That's just Sprint.

Here's what Taylor had to say; the audio clip is here and we are also mirroring a zip file from Soghoian containing other related mp3 recordings and documents.

[M]y major concern is the volume of requests. We have a lot of things that are automated but that's just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don't know how we'll handle the millions and millions of requests that are going to come in.
Eight million would have been a shocking number even if it had included every single legal request to every single carrier for every single type of customer information; that Sprint alone received eight million requests just from law enforcement only for GPS data is absolutely mind-boggling. We have long warned that cell phone tracking poses a threat to locational privacy, and EFF has been fighting in the courts for years to ensure that the government only tracks a cell phone's location when it has a search warrant based on probable case. EFF has also complained before that a dangerous level of secrecy surrounds law enforcement's communications surveillance practices like a dense fog, and that without stronger laws requiring detailed reporting about how the government is using its surveillance powers, the lack of accountability when it comes to the government's access to information through third-party phone and Internet service providers will necessarily breed abuse. But we never expected such huge numbers to be lurking in that fog.

Now that the fact is out that law enforcement is rooting through such vast amounts of location data, it raises profoundly important questions that law enforcement and the telcos must answer:

How many innocent Americans have had their cell phone data handed over to law enforcement?
How can the government justify obtaining so much information on so many people, and how can the telcos justify handing it over?
How did the number get so large? Is the government doing massive dragnet sweeps to identify every single cell phone that was in a particular area at a particular time? Is the government getting location information for entire "communities of interest" by asking not only for their target's location, but also for the location of every person who talked to the target, and every person who talked to them?
Does the number only include requests to track phones in real-time, or does it include requests for historical GPS data, and if so, why did the telcos have that incredibly sensitive data sitting around in the first place? Exactly when and how are they logging their users' GPS data, and how long are they keeping that data?
What legal process was used to obtain this information? Search warrants? Other court orders? Mere subpoenas issued by prosecutors without any court involvement? How many times was this information handed over without any legal process at all, based on government claims of an urgent emergency situation?
Looking beyond Sprint and GPS, how many Americans have had their private communications data handed over to law enforcement by their phone and Internet service providers?
What exactly has the government done with all of that information? Is it all sitting in an FBI database somewhere?
Do you really think that this Orwellian level of surveillance is consistent with a free society and American values? Really?
These questions urgently need to be asked — by journalists, and civil liberties groups like EFF, and by every cell phone user and citizen concerned about privacy. Most importantly, though, they must be asked by Congress, which has failed in its duty to provide oversight and accountability when it comes to law enforcement surveillance. Congress should hold hearings as soon as possible to demand answers from the government and the telcos under oath, and clear the fog so that the American people will finally have an accurate picture of just how far the government has reached into the private particulars of their digital lives.

Even without hearings, though, the need for Congress to update the law is clear. At the very least, Congress absolutely must stem the government's abuse of its power by:

Requiring detailed reporting about law enforcement's access to communications data using the Electronic Communications Privacy Act (ECPA), just as it already requires for law enforcement wiretapping under the Wiretap Act, and make sure that the government actually fulfills its obligations rather than ignore the law for years on end.
Requiring that the government "minimize" the communications data it collects under ECPA rather than keep it all forever, just like it is supposed to do with wiretaps.
Prohibiting the government from using in a criminal trial any electronic communications content or data that it obtains in violation of ECPA, just as the government is prohibited by the Wiretap Act from using illegally acquired telephone intercepts.
Clarifying that ECPA can only be used to get specific data about particular individuals and cannot be used for broad sweeps, whether to identify everyone in a particular geographic area or to identify every person that visits a particular web site.
It's time for Congress to pull the curtain back on the vast, shadowy world of law enforcement surveillance and shine a light on these abuses. In the meantime, we give our thanks to those like Chris Soghoian who are doing important work to uncover the truth about government spying in America.

UPDATE: Sprint has responded to Soghoian's report:

The comments made by a Sprint corporate security officer during a recent conference have been taken out of context by this blogger. Specifically, the “8 million” figure, which the blogger highlights in his email and blog post, has been grossly misrepresented. The figure does not represent the number of customers whose location information was provided to law enforcement, as this blogger suggests.

Instead, the figure represents the number of individual “pings” for specific location information, made to the Sprint network as part of a series of law enforcement investigations and public safety assistance requests during the past year. It’s critical to note that a single case or investigation may generate thousands of individual pings to the network as the law enforcement or public safety agency attempts to track or locate an individual.

Instances where law enforcement agencies seek customer location information include exigent or emergency circumstances such as Amber Alert events, criminal investigations, or cases where a Sprint customer consents to sharing location information.

Sprint takes our customers’ privacy extremely seriously and all law enforcement and public safety requests for customer location information are processed in accordance with applicable state and federal laws.
This response provides some important answers, while raising even more questions. First off, Sprint has confirmed that it received 8 million requests, while denying a charge that no one has made: that 8 million individual customers' data was handed over. Sprint's denial also begs the question: how many individual customers have been affected?

As for Sprint's claim that in some instances a single case or investigation may generate thousands of location "pings", that is certainly possible, but that doesn't make the 8 million number any less of a concern, or moot any of the important questions raised by Soghoian in his report or by EFF in its post regarding the lack of effective oversight and transparency in this area.

Even assuming that Sprint's statement about "pings" is true, 8 million — or, in other words, 8,000 thousands — is still an astronomical number and more than enough to raise serious concerns that Congress should investigate and address. Moreover, the statement raises additional questions: exactly what legal process is being used to authorize the multiple-ping surveillance over time that Sprint is cooperating in? Is Sprint demanding search warrants in those cases? How secure is this automated interface that law enforcement is using to "ping" for GPS data? How does Sprint insure that only law enforcement has access to that data, and only when they have appropriate legal process? How many times has Sprint disclosed information in "exigent or emergency circumstances" without any legal process at all? And most worrisome and intriguing: what customers does Sprint think have "consent[ed] to the sharing [of] location data" with the government? Does Sprint think it is free to hand over the information of anyone who has turned on their GPS functionality and shared information with Sprint for location-based services? Or even the data of anyone who has agreed to their terms of service? What exactly are they talking about?

These questions are only the beginning, and Sprint's statement doesn't come close to answering all of them. Of course, we appreciate that Sprint has begun a public dialogue about this issue. But this should be only the beginning of that discussion, not the end. Ultimately, the need for Congress to investigate the true scope of law enforcement's communications surveillance practices remains. Congress can and should dig deeper to get the hard facts for the American people, rather than forcing us to rely solely on Sprint's public relations office for information on these critical privacy issues.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 01, 2009, 08:39:06 PM
Oh wow, uninformed hysteria from the EFF. Shocking.  :roll:

Here is the supersecret countermeasure to protect yourself from malevolent gov't snooping.

1. Pick up cellphone.

2. Remove battery.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 02, 2009, 04:46:26 AM
I'm thinking the matter deserves more interest and concern than that , , ,

Anyway, here's another case in the Kelo line:

Floridians who think life's a beach should be watching the Supreme Court closely today when the Justices hear oral arguments about whether the state may confiscate private waterfront land for a dubious public purpose.

The case, Stop the Beach Renourishment v. Florida Dep't of Environmental Protection, began in 2003, when home owners in the Florida Panhandle objected to changes in their property lines caused by a "beach renourishment" program. Typically done in the name of deterring erosion, the government carts in truckloads of sand, making the beach bigger. But rather than extending the property of the owner, the state declares itself owner of the sandy addition, effectively separating waterfront home owners from the water itself.

The Florida Supreme Court ruled 5-2 for the state and claimed the program doesn't mean the state can go around "creating as much dry land between upland property and the water as it pleases." There's a point, they said, at which such beach additions would represent an unconstitutional taking. But the problem is where exactly that point occurs: Without a specific demarcation, it's a slippery slope for how much land the state may seize without having to compensate the private owners.

To reach its decision, the Florida high court had to throw over 100 years of common law to declare that waterfront property owners have "no independent right of contact with the water." In a scathing dissent, Florida Justice Fred Lewis wrote that for the court to say that waterfront rights are unconnected with ownership of the land abutting water is a non sequitur. The court had "butchered Florida law," he wrote, and "unnecessarily created dangerous precedent based on a manipulation of the question actually certified."

Beach renourishment has been controversial around the country as a waste of money spent on sand that literally washes back into the ocean. According to the National Oceanic and Atmospheric Administration, by 2002 more than $2.5 billion of federal money had been spent on beach projects. According to a May report by Oklahoma Senator Tom Coburn, many are special interest projects for wealthy communities and have few environmental benefits.

The Florida case is all the weirder because the beaches in question aren't threatened by erosion and some have grown naturally in recent years, adding to the suspicion that "beach renourishment" is a state pretext to gain waterfront rights in a desirable area. Unable to stop the state from dumping the new sand on their beaches, several owners offered to pay the state their pro-rata share of the sand distribution to maintain exclusive rights to their waterline. Florida refused the deal.

If the state wants to create a public beach, it may have the power to do so by invoking eminent domain and compensating owners for their loss. Short of that, the action is a taking that violates the Fifth Amendment, and this case provides an opportunity for the Supreme Court to begin making amends for the damage it did to property rights in the 2005 case of Kelo v. New London.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Rarick on December 02, 2009, 04:55:33 AM
8 million is a lot.  there were only Thousands of search warrants issued last year nationally.  It makes me wonder, that is what is probably concerning the EFF.  Removing the battery from your primary communication tool is like living with out a telephone, intrusion into "free association".  I do not like the appearance that a cop could pick up a phone dial a number and find out where I am at, all without a warrant or knowledge of a couple of other officers.  Too much room for abuse.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on December 02, 2009, 05:24:03 AM
1. Pick up cellphone.

2. Remove battery.

Hmm, don't see in the users manual how I can do that with my iPhone. Perhaps you know of a way that doesn't involve a hammer?

Perhaps this is hysteria, but it's one guy working for one phone company inadvertently, I presume, revealing what's behind the curtain. I for one would like to know how often these sorts of requests are dealt with by all carriers, what procedures are in place to document these requests, how abuse is prevented, and so on. Or should members of a participatory democracy (or republic, if you prefer) not be concerned about stuff like that?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 02, 2009, 05:44:33 AM
I'm with BBG and Rarick on this.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 06:59:21 AM
**Assuming that someone from the EFF actually has some technical ability to grasp the "electronic frontier, I'm assuming some AGW-esque book-cooking in the above post. Below is a more technically accurate and honest article:

**Now, I assume the EFF has heard of something certain internet insiders call "google". Using this mostly unheard of website, I was able to bring up this article that was published by taxpayers money and exists as an open source document viewable by any member of said participatory democracy/republic.**

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on December 02, 2009, 07:11:50 AM
From the first link:

The spokesman wouldn’t disclose how many of Sprint’s 48 million customers had their GPS data shared, or indicate the number of unique surveillance requests from law enforcement.

Why as customers aren't we allowed to evaluate how willing a carrier is to provide locational data without a users' consent?

From the second link:


The only thing certain with respect to the legal requirements for acquisition of cell site information by the government for purposes of identifying the location of a cellular telephone and its user is that nothing is certain at this moment. The path that the use of cell site tracking is headed down is likely toward a legislative solution. In the interim, law enforcement should track judicial developments closely within their jurisdictions. State and local law enforcement also should take a proactive role with respect to legislative solutions to this uncertainty within their own state electronic surveillance statutes.

Sounds far less than definitive to me.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 07:26:47 AM
From the first link:

The spokesman wouldn’t disclose how many of Sprint’s 48 million customers had their GPS data shared, or indicate the number of unique surveillance requests from law enforcement.

Why as customers aren't we allowed to evaluate how willing a carrier is to provide locational data without a users' consent?

**Without wading through all the applicable laws and caselaw, I'm guessing that Sprint has no legal obligation to do so. Keep in mind that this data is being accessed by court order/subpeona/warrant and is subject to judicial review.**

From the second link:


The only thing certain with respect to the legal requirements for acquisition of cell site information by the government for purposes of identifying the location of a cellular telephone and its user is that nothing is certain at this moment. The path that the use of cell site tracking is headed down is likely toward a legislative solution. In the interim, law enforcement should track judicial developments closely within their jurisdictions. State and local law enforcement also should take a proactive role with respect to legislative solutions to this uncertainty within their own state electronic surveillance statutes.

Sounds far less than definitive to me.

**It's not definitive. As technology advances and new laws are written and caselaw develops, the rules and procedures get fleshed out. Still, this is being shaped as we speak by those legislatures and courts that are part of that participatory democracy/republic. Phones have come a long way since the FBI was sitting in AT&T switching operator stations, recording conversations on wax. Laws and law enforcement has to reflect that.**
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 02, 2009, 10:16:16 AM
Also coming a real long way is the Orwellian potential of ever accelerating technological capabilities , , ,
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 11:54:31 AM
So, the policy solution to technology is....
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 02, 2009, 02:36:28 PM
Well, the first step in your case would be to admit it exists :lol:
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 02:42:18 PM
Does the 1st amd. only apply to town criers and wood block printing? Does the 2nd. only apply to muskets? Does the 4th apply to cell phones and the intertubes, or are they somehow immune from reasonable search and seizure?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 02:48:20 PM
The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated, and no Warrants shall issue.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 02, 2009, 02:53:43 PM
"Does the 1st amd. only apply to town criers and wood block printing? Does the 2nd. only apply to muskets? Does the 4th apply to cell phones and the intertubes, or are they somehow immune from reasonable search and seizure?"

If you seize and search something after a warrant is issued, that is different that using that something to track where a human being has been or goes.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 03:06:39 PM
UNITED STATES V KARO, 468 U. S. 705 (1984)
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Link to the Full Text of Case:

U.S. Supreme Court
United States v Karo, 468 U.S. 705 (1984)
United States v Karo

No. 83-850

Argued April 25, 1984

Decided July 3, 1984

468 U.S. 705


After a Drug Enforcement Administration (DEA) agent learned that respondents Karo, Horton, and Harley had ordered 50 gallons of ether from a Government informant, who had told the agent that the ether was to be used to extract cocaine from clothing that had been imported into the United States, the Government obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. With the informant's consent, DEA agents substituted their own can containing a beeper for one of the cans in the shipment. Thereafter, agents saw Karo pick up the ether from the informant, followed Karo to his house, and determined by using the beeper that the ether was inside the house, where it was then monitored. The ether then moved in succession to two other houses, including Horton's, before it was moved first to a locker in one commercial storage facility and then to a locker in another such facility. Both lockers were rented jointly by Horton and Harley. Finally, the ether was removed from the second storage facility by respondent Rhodes and an unidentified woman and transported in Horton's truck, first to Rhodes' house and then to a house rented by Horton, Harley, and respondent Steele. Using the beeper monitor, agents determined that the beeper can was inside the house, and obtained a warrant to search the house based in part on information derived through use of the beeper. The warrant was executed, and Horton, Harley, Steele, and respondent Roth were arrested, and cocaine was seized. Respondents were indicted for various offenses relating to the cocaine. The District Court granted respondents' pretrial motion to suppress the seized evidence on the grounds that the initial warrant to install the beeper was invalid, and that the seizure was the tainted fruit of an unauthorized installation and monitoring of the beeper. The Government appealed, but did not challenge the invalidation of the initial warrant. The Court of Appeals affirmed, except with respect to Rhodes, holding that a warrant was required to install the beeper in the can of ether and to monitor it in private dwellings and storage lockers, that the warrant for the search of the house rented by Horton, Harley, and Steele, and the resulting seizure, were tainted by the Government's prior illegal conduct, and that therefore the evidence was properly suppressed as to Horton, Harley, Steele, Roth, and Karo.

Page 468 U. S. 706


1. No Fourth Amendment interest of Karo or of any other respondent was infringed by the installation of the beeper. The informant's consent was sufficient to validate the installation. And the transfer of the beeper-laden can to Karo was neither a search nor a seizure, since it conveyed no information that Karo wished to keep private and did not interfere with anyone's possessory interest in a meaningful way. Pp. 468 U. S. 711-713.

2. The monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. Here, if a DEA agent had entered the house in question without a warrant to verify that the ether was in the house, he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. The result is the same where, without a warrant, the Government surreptitiously uses a beeper to obtain information that it could not have obtained from outside the curtilage of the house. There is no reason in this case to deviate from the general rule that a search of a house should be conducted pursuant to a warrant. Pp. 468 U. S. 713-718.

3. The evidence seized in the house in question, however, should not have been suppressed with respect to any of the respondents. The information that the ether was in the house, verified by use of the beeper without a warrant, would be inadmissible against those respondents with privacy interests in the house, and would invalidate the search warrant, if critical to establishing probable cause. But because locating, without prior monitoring, the ether in the second storage facility was not an illegal search (use of the beeper not identifying the specific locker in which the ether was located and the locker being identified only by the smell of ether emanating therefrom), and because the ether was seen being loaded into Horton's truck, which then traveled the highways, it is evident that there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in the truck. United States v. Knotts, 460 U. S. 276. Under the circumstances, the warrant affidavit, after striking the facts about monitoring the beeper while it was in the searched house, contained sufficient untainted information to furnish probable cause for issuance of the search warrant. Pp. 468 U. S. 719-721.

710 F.2d 1433, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN and POWELL, JJ., joined, in Parts I, II, and IV of which REHNQUIST and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which

Page 468 U. S. 707

REHNQUIST, J., joined, post, p. 468 U. S. 721. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 468 U. S. 728.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 03:10:08 PM
UNITED STATES V. KNOTTS, 460 U. S. 276 (1983)
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Link to the Case Preview:

Link to the Full Text of Case:

U.S. Supreme Court
United States v. Knotts, 460 U.S. 276 (1983)
United States v. Knotts

No. 81-1802

Argued December 6, 1982

Decided March 2, 1983

460 U.S. 276


Having reason to believe that one Armstrong was purchasing chloroform to be used in the manufacture of illicit drugs, Minnesota law enforcement officers arranged with the seller to place a beeper (a radio transmitter) inside a chloroform container that was sold to Armstrong. Officers then followed the car in which the chloroform was placed, maintaining contact by using both visual surveillance and a monitor which received the beeper signals, and ultimately tracing the chloroform, by beeper monitoring alone, to respondent's secluded cabin in Wisconsin. Following three days of intermittent visual surveillance of the cabin, officers secured a search warrant and discovered the chloroform container, and a drug laboratory in the cabin, including chemicals and formulas for producing amphetamine. After his motion to suppress evidence based on the warrantless monitoring of the beeper was denied, respondent was convicted in Federal District Court for conspiring to manufacture controlled substances in violation of 21 U.S.C. § 846. The Court of Appeals reversed, holding that the monitoring of the beeper was prohibited by the Fourth Amendment.

Held: Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case. There is no indication that the beeper was used in any way to reveal information as to the movement of the chloroform container within the cabin, or in any

Page 460 U. S. 277

way that would not have been visible to the naked eye from outside the cabin. Pp. 460 U. S. 280-285.

662 F.2d 515, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 460 U. S. 285. BLACKMUN, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 460 U. S. 287. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN, and MARSHALL, JJ., joined, post, p. 460 U. S. 288.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 02, 2009, 05:16:30 PM
Do these cases from the mid 80s address the questions being raised now?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 02, 2009, 08:10:46 PM
Very much so:

Held: Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on December 02, 2009, 08:47:00 PM
For a slightly different angle... Your cell phone signal and its records are private, your health care with its records are private, your banking and credit card records are private and yes, your garbage is private.  My garbage cans are on my property.  My contract with my hauler is to take it carefully and professionally and dispose of it, not to share it, sell it or data mine it.  Guess I won't be chosen for the court anytime soon.

The syllabus started: "Having reason to believe " which sounds vaguely like probable cause.  That changes things back to giving law enforcement the tools to do their job and making search reasonable.  If those who we trust abuse that power, knowingly dummy up the 'reason to believe', then they are violating the constitution and should be fired, fined, sued and caned IMO.  Fair enough?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 02, 2009, 09:04:56 PM

Your points are lucid, but I submit that there is something qualitatively different about being effortlessly being able to keep track of ALL of someone's movements, or to recover what they were retroactively.

"Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case."

I'm not sure that the truth of this statement, which after all is limited to the facts presented, means that it applies across the board.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Rarick on December 03, 2009, 03:50:15 AM
All of these go around could have been avoided if the Wired article had been simply posted as a counter to the EFF article.   The usual checks and balances are in place, so there is some reasurance.  I have a certain amount of paranoia tho' like Dougy Mac, your flip answer pushes buttons, and earns a bit of aggro.

Crime Prevention is a slippery slope, catching a criminal after the fact is fine by me.  It keeps life interesting knowing you still hafta wath out for the lions, tigers and bears out there, even if they have 2 feet nowadays.  Too much surveillance precludes freedom due to a lack of privacy, if not anonymity (sp?)
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 03, 2009, 10:19:40 AM
For a slightly different angle... Your cell phone signal and its records are private, your health care with its records are private, your banking and credit card records are private and yes, your garbage is private.  My garbage cans are on my property.  My contract with my hauler is to take it carefully and professionally and dispose of it, not to share it, sell it or data mine it.  Guess I won't be chosen for the court anytime soon.

**This is what the courts have said thus far on some of these key topics :

 Discovery of Certain Actions or Individual Characteristics do not require a Fourth Amendment "search" and are not protected by the Fourth Amendment.

Abandoned property. By definition, voluntarily abandoned property cannot support a reasonable claim of privacy or possessory interests, and so there can be no "search" or "seizure" of such property in the Fourth Amendment sense. See, e.g., Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (contraband liquor discarded in a field); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (contents of wastebasket in vacated hotel room); and California v. Greenwood, 486 U.S. at 35, (trash left for collection at the curb); State v. Brunson, 13 Kan.App.2d 384, 394-95, 771 P.2d 938, rev. denied 245 Kan. 786 (1989)(car abandoned on golf course).

Open fields. "[A]n individual has no expectation that open fields will remain free from warrantless intrusion by government officers." Oliver v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). See also Hester, 265 U.S. at 58; Dunn, 480 U.S. at 300; State v. Tinsley, 16 Kan. App. 2d 289, 823 P.2d 205 (1991)(marijuana growing in area 45 to 70 feet from house near a cattle shed); Dow Chemical v. United States, 476 U.S. 227, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1986)(no expectation of privacy from aerial surveillance & photography of smokestack emissions); United States v. Knotts, 460 U.S. 276, 281-82, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1983)(person traveling on public roads has no reasonable expectation of privacy from observation of his movements).

Plain view. No legitimate expectation of privacy exists in property exposed to official observation.

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
    There is no inadvertence requirement for plain-view seizures. Horton v. California, 495 U.S. 128, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
    Two varieties of plain view seizures are possible: (1) an item exposed to view in a public place may be seized without involving any search activity; or (2) an item may be seen in plain view during the course of other lawful search or-seizure activity (such as during service of a search warrant, or while requesting consent to search). In either case, the seizure of the property in plain view "involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)(Emphasis added). See, especially, Texas v. Brown, 460 U.S. 730, 738, n. 4, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)("'plain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment."); Arizona v. Hicks, 480 U.S. 321, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1987)(no seizure by recording serial numbers from stereos, but moving equipment to see numbers was a seizure).

    The use of optical aids, such as flashlights, searchlights or binoculars, do not affect the legality of observing in plain view what could lawfully be seen in daylight or at closer range. Texas v. Brown, 460 U.S. at 739-740 (flashlight); State v. Epperson, 237 Kan. 707, 714, 703 P.2d 761, (1985)(same); On Lee v. United States, 343 U.S. 747, 754, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)(radio transmitter & receiver); United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927)(searchlight).
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 03, 2009, 10:46:37 AM

Your points are lucid, but I submit that there is something qualitatively different about being effortlessly being able to keep track of ALL of someone's movements, or to recover what they were retroactively.

**You can track's someone's phone, with some effort and a court's approval, but in most situations that isn't of much evidentiary value by it's self. It is my understanding that absent a court order or request, cell phone providers dump their records very rapidly, given the cost involved in archiving such data. So there is not much in the way of retroactive recovering of location via cell records.**

"Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case."

I'm not sure that the truth of this statement, which after all is limited to the facts presented, means that it applies across the board.
**It's not absolute. Remember Kyllo v. the United States? The 4th amendment protects the reasonably expected privacy in your home from thermal imaging without a search warrant. **
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 03, 2009, 11:43:55 AM
FOURTH AMENDMENT [U.S. Constitution] - 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).

In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.

Unreasonable Searches And Seizures.

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).

Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).

The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).

Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.

The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').

'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.

Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.

Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).

Searches Involving Intrusions Beyond The Body's Surface.

Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.

Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.

Investigatory Stops Of Motorists At Sobriety Checkpoints.

The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.

Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).

The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').

Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').

Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints -- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').

The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.

The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).

'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.

Blanket Searches.

Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.

In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.

Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).

A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('
  • nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).
Title: There Is No Freedom Without Law
Post by: G M on December 03, 2009, 11:56:56 AM

There Is No Freedom Without Law
posted at 4:08 pm on November 5, 2009 by Doctor Zero

Senator Roland Burris (D-Illinois) was recently asked by CNS News to specify which part of the Constitution authorizes Congress to legally compel individuals to purchase health insurance, a key component of the last dozen versions of the twelve hundred page ObamaCare proposal. Burris replied:
“Well, that’s under certainly the laws of the–protect the health, welfare of the country. That’s under the Constitution. We’re not even dealing with any constitutionality here. Should we move in that direction? What does the Constitution say? To provide for the health, welfare and the defense of the country.”
This is not a new sentiment. Burris is stating one of the core principles of American liberalism: the belief that the Constitution lays out a series of general directives, rather than imposing specific restrictions on the power of government… as if “promote the general welfare” and the interstate commerce clause were deliberately written into the Constitution as secret ingredients that would vaporize the rest of the document and give the government unlimited power, once some future generation of clever liberals combined them.
Many conservatives respond to the occasional RINO stampede, such as the one which tore through New York congressional district 23 in the recent special election, by suggesting the Republicans should advance a solid conservative platform, and require all candidates to swear allegiance to it. I understand this desire, but I’ve always been uncomfortable with the notion of threatening candidates with excommunication, unless they agree to support a list of positions stapled to their foreheads.  We should all be able to come together around the defense of the Constitution, however. We need no other set of principles to guide us in repairing the damage of the past century. If the government is not restrained by loyalty to the Constitution, then its citizens are not free.
Freedom cannot exist in the absence of law. People living in a state of anarchy are not free. They live under the random tyranny of any warlord, gang, or predator who can overpower them. They also live within the prison of their own distrust for their fellow men. A code of clear, fairly administered laws enhances our ability to trust, and cooperate with, people we don’t know personally. Of course, laws restrict our actions, by punishing us for engaging in illegal activities… but they also enhance our freedom, by allowing us to work more easily with each other, and trade with confidence.
You submit to a fairly involved code of laws, backed up by steep financial penalties and the threat of deadly force, every time you climb into your car. Those very same laws make it possible for you to drive long distances quickly and easily – compared to foot or horse travel, anyway. Without those laws, the fast-moving and complex system of roads and highways would become so deadly that everyone would be afraid to use them.
This same principle applies to government. A lawless government is a tyranny, and its citizens are not free. It doesn’t matter if the lawless state was reached through a brutal thirst for power, or high-minded compassionate ideals. We wouldn’t indulge reckless defiance of the traffic laws by someone in a mad rush to make a large donation to the local Salvation Army chapter. Even ambulance drivers are expected to obey certain rules of the road, and would not be allowed to run down pedestrians in their race to the local emergency room.
Government cannot derive its legitimacy entirely from the approval of a democratic majority, as asserted by the demand that President Obama should be granted virtually limitless power over the lives of American citizens because he won the last election. This would be no less offensive to liberty if Obama had won with seventy, eighty, or ninety percent of the popular vote, instead of 52%. The need to assemble majority support cannot be the sole limit on the power of the State. If the male castaways of “Gilligan’s Island” decide to hold a purely democratic vote to enslave the women, then Mrs. Howell, Ginger, and Mary Ann are in deep trouble.
Some Democrats have responded to the Tea Party movement by whining that noisy minorities should not be allowed to interfere with governance. These are the same people who assert the power to nationalize the health insurance industry because 20, 30, or 47 million people lack adequate insurance. Freedom cannot be reduced to a struggle between whichever noisy minority puts on the biggest demonstration in Washington D.C. How much time, energy, and money has already been expended, fighting over a gigantic, ever-changing health care bill that never should have existed in the first place?
A strict adherence to the Constitution would “promote the general welfare” far more effectively than any program cobbled together in the back rooms of Congress, by saving us the waste of money and passion expended in arguing about those programs. A properly respected Constitution would be a peerless tool for bringing people together, because it would prevent government from tearing them into warring factions by offering fabulously expensive benefits to some, at the expense of others. It would reduce the level of anger and venom in our society, because no one would have to fight a desperate last-ditch battle to preserve his liberty in the voting booth. It would improve the civic pride of citizens, by giving them meaningful input into local policies, instead of demanding they submit to the agenda of distant politicians they will never be allowed to vote against, from states they might never even visit.
For too long, the Left has interpreted the Constitution as an ever-expanding warrant for the arrest of all those who dissent from its agenda. The glorious truth of that incredible document is exactly the opposite: it was designed to restrain the central government, with chains equally impervious to threats and pleading. A just government has very few laws its citizens cannot change by voting locally, or escape by moving to a different state. It cannot require the level of trust that free citizens extend only to each other. Reasoned deliberation can never involve blind votes on thousand-page bills written last week.
The Founding Fathers gave their descendants a luminous gift: a set of laws that transform a potentially tyrannical State into a mighty champion of liberty. Those laws are written on a sheet of antique parchment, which can be easily ignored by fallible men… unless other men have the courage and discipline to hold it up, and insist it be obeyed. That’s a job that every strain of conservative should be eager to rally around. Slicing our bloated, delusional government back down to something in line with the Constitution would be the work of a lifetime… and we’ve only got a few years to get it done, before its heart gives out, and we are crushed beneath it. If the Declaration of Independence was a challenge to foreign conquerors, then the Constitution is a challenge we issue to ourselves. Both documents await the signature of anyone who expects my vote.
Title: NY eminent domain case
Post by: Crafty_Dog on December 03, 2009, 12:27:10 PM
A state court ruled on Thursday that the state could not use
eminent domain on behalf of Columbia University to obtain a
17-acre site in West Harlem, dealing a major blow to the
university's plans to build a $6.3 billion satellite campus.

Read More:
Title: Time for some Turnabout?
Post by: Body-by-Guinness on December 03, 2009, 01:02:31 PM
Lying and the Federal Government

Posted by David Boaz

Speaking of White House gate-crashers Tareq and Michaele Salahi (as we were trying to think of an excuse to do, to increase blog traffic), Slate says they might be guilty of a federal crime. What crime? Well, possibly trespassing on federal property. Or maybe the “broad prohibition on lying to the federal government.” Title 18, section 1001 of the U.S. Code

can be used to prosecute anyone who “knowingly and willfully … falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation” to the government. That could include lying about your arrest record on a government job application, claiming a fake deduction on your taxes, or telling someone you’re on the White House invite list when you’re not.

I can’t help wondering, is there any equally broad prohibition on lying by the federal government? If the federal government, or a federal agency, or a federal official “knowingly and willfully … falsifies, conceals, or covers up” information or “makes any materially false, fictitious, or fraudulent statement or representation” — about the costs of a new entitlement, or how a candidate for reelection will act in his next term, or case for going to war — is that prohibited? Or are the rules tougher on the ruled than the rulers?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on December 03, 2009, 06:06:24 PM
There is a lot of parsing going on with the gate crashers.  IMO they were waved in by someone, maybe a czar.  Hopefully we will find out.  Maybe the Obama'a were comfortable with the breach but another major world leader should not be put in that situation.  BTW, when did state dinners drop to the level of picnic in a tent...
NY is not one of the states that passed further restrictions after Kelo so that decision will be interesting to look at.
Regarding the privacy of garbage: Considering other decisions like Roe and Kelo standing the test of time, I'm not surprised to find I disagree with the court over garbage.  If someone sees a couch discarded at the curb and picks it up, that is one thing.  No harm done.  If someone combs for account numbers and personal correspondence maybe a well organized militia could be the remedy or deterrent.  :-)  I shouldn't need to shred everything when I pay a private company to dispose of it.

Once again, LE with serious reason to believe is another thing IMO. What they see and what they find still remains private (just my view) except for how it may apply toward solving a case. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 03, 2009, 08:13:58 PM
"I shouldn't need to shred everything when I pay a private company to dispose of it."

But you do.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 03, 2009, 10:37:58 PM
Tweakers and other vermin love people that don't shred using a crosscut shredder. Buy a good one and USE it before you get a harsh lesson in identity theft.
Title: WSJ: Separation of powers case
Post by: Crafty_Dog on December 04, 2009, 05:11:46 AM

Congress wants to wallop business with even more regulation in the wake of the financial panic, but perhaps the Members should pause on Monday and visit the Supreme Court. The Justices will hear arguments on whether major portions of the last great Congressional overreaction, the 2002 Sarbanes-Oxley Act, are constitutional.

Free Enterprise Fund v. Public Company Accounting Oversight Board was brought in 2006 by Brad Beckstead, whose small Nevada accounting firm endured a costly examination under Sarbox rules. At issue is whether the Public Company Accounting Oversight Board, or PCAOB, which supervises compliance with the law, violates the Constitution's separation of powers. Under the Appointments Clause, all "officers" of the United States must be appointed by the President and accountable to him—a condition PCAOB members do not meet.

The board's five members are instead hired by the commissioners of the Securities and Exchange Commission, who are appointed by the President. This arrangement passed muster in a 2-1 decision by the D.C. Circuit Court of Appeals, on the dubious grounds that the members were "inferior officers" and accountable to the President through the SEC. Never mind that they are not "directed and supervised" by the SEC, the traditional requirement for inferior officers.

The dissenter on the D.C. Circuit panel, Judge Brett Kavanaugh, called the case the most important separation of powers case in 20 years and said the appeals court had created a constitutional hash. Though the PCAOB "performs numerous regulatory and law enforcement functions at the core of the executive power," he wrote, for the first time in U.S. history we have "an independent agency whose heads are appointed by and removable only for cause by another independent agency."

The PCAOB has indeed grown as a politically unaccountable entity with vast power to regulate business. Texas Senator Phil Gramm warned at its creation that Congress was setting up a board with "massive unchecked power" to "make decisions that affect all accountants and everybody they work for, which directly or indirectly is every breathing person in the country."

Massive is the right word. The accounting board's wide-open mandate—to make whatever rules "may be necessary or appropriate in the public interest or for the protection of investors"—has cost the economy nearly $1 trillion, according to a study by AEI and the Brookings Institution. The benefit is supposed to be investor protection. But despite these costs, the law did nothing to warn about the meltdown of mortgage-backed securities, much less expose Bernie Madoff or other fraudsters.

These realities contributed to the welcome 37-32 November vote in the House Financial Services Committee to exempt small businesses from section 404b of Sarbox, which governs audit requirements. Sponsored by Democrat John Adler and Republican Scott Garrett, both of New Jersey, the provision was supported by the Obama Administration and 10 Democrats joined Republicans in support.

As the Supremes now take their turn, the case has implications the regulation-loving press corps hasn't noticed. A decision to uphold the PCAOB would open the door for Congress to create any number of equally unaccountable regulators across the economy. However, a ruling against the PCAOB could bring down the whole law because Sarbox does not have a "severability clause," which means that if one part goes down the entire law may be invalidated.

Debates over the Appointments Clause haven't typically divided the Supreme Court along liberal and conservative lines, so the outcome is hard to handicap. As Hans Bader and John Berlau of the Competitive Enterprise Institute point out, in the 1995 case Ryder v. United States, the High Court ruled unanimously that "an individual or firm disciplined by a government agency can challenge that discipline if agency officials were improperly appointed."

At stake here isn't merely a poorly written law that has done great economic harm. The issue is whether Congress, in its haste, can ignore the Constitutional order that has ensured accountable government for 230 years.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on December 04, 2009, 06:59:11 AM
GM you are right about shredding.  My volume of paperwork is overwhelming; I think I will go back to separating personalized paperwork, including a lot of junk mail, from the trash and burning it in the occasional home campfire.  Unfortunately all that extra effort doesn't save me from the larger identity risks out there.  Almost every bank in North America already knows my mother's maiden name.  If I ever forget it, I can probably buy a used hard drive on eBay and just look it up.

The bank gets my info because I want/need their service and thus agree to their terms.  What about car insurance companies?  I prefer self insurance but do business with them by government mandate.  But I choose to drive on a public street and need to pay by automatic means to be punctual so that makes it consensual.  Then comes health care.  Rhetorical, but why do they get to know everything? Now comes the mandate.  Even if I refuse to be treated I need to 'buy' the policy and disclose all info including health, financial, credit and behaviors.  If you have taken a kid in for a checkup lately you have been asked if there are guns in the house, among other things.

We need a resurgence in privacy.  Not from law enforcement when a crime was committed, but for just living and going about your business when you are not harming someone else.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 04, 2009, 07:15:41 AM
I really don't know the legislative remedy for that.

The used hard drive line was funny, btw.  :-D
Title: Useful or Anonymous, Not Both
Post by: Body-by-Guinness on December 04, 2009, 07:22:51 PM
Some context where data harvesting is concerned. It doesn't take much to put innocuous looking stuff together:
Reason Magazine

Where Everybody Knows Your Name

What do AOL customers, Netflix subscribers, and abortion seekers in Oklahoma have in common? Hacking their identities is a cinch.

Katherine Mangu-Ward | December 4, 2009

We're all part of a huge, ongoing statistics project. Mostly, we become a part of various data sets anonymously, without even knowing it—as sales figures for Guitar Hero, traffic patterns on I-95, or levels of cocaine in an urban sewer system.

But there's another kind of data that gets released into the wild with increasing frequency: researcher bait. Netflix made its user-generated rating database publicly available as part of a prize competition designed to improve the site's movie recommendations. Three years ago, America Online released several months of search query information, just as a nice gesture to researchers. In both cases, the names and other obvious identifying information were removed before the data was set free.

Last month, Oklahoma set out to contribute a new mass of data to the world. New reporting requirements on abortion would have dumped a massive amount of information into a public database, available on the state government's website. The new laws require doctors to collect and report information about every abortion in the state, including the mother's age, marital status, race, number of children, education level, the mother’s relationship to the father, the reason for the abortion, the cost, and method of payment. The form contains 37 questions, most with several subsections. The names and addresses of the women would have been omitted, though her zip code was part of the information to be disclosed.

But as it turns out, taking your name off of something doesn't mean your fingerprints aren't all over it. Even when obvious identifying information is stripped from a large data set, personal identities can often be cracked by a geek with time on his hands.

Geeks like Arvind Narayanan and Vitaly Shmatikov, to be specific, who broke the anonymity of the Netflix set by comparing the dates of specific rankings with similar rankings on the popular Internet Movie Database, where users reveal personal information in public profiles. The vulnerability of the AOL database so horrified researchers that they have mostly left the set alone, tempting though that juicy data is. For a taste of the kind of revelations from that "anonymized" set, check out what this guy was up to:

17556639 how to kill your wife
17556639 how to kill your wife
17556639 wife killer
17556639 how to kill a wife
17556639 poop
17556639 dead people
17556639 pictures of dead people
17556639 killed people
17556639 dead pictures
17556639 dead pictures
17556639 dead pictures
17556639 murder photo
17556639 steak and cheese
17556639 photo of death
17556639 photo of death
17556639 death
17556639 dead people photos
17556639 photo of dead people
17556639 decapatated photos
17556639 decapatated photos
17556639 car crashes3
17556639 car crashes3
17556639 car crash photo
Searches for just a couple of addresses or phone numbers along with that astonishingly evocative list of murder-related searches and user 17556639 is in the bag. In 2000 then-graduate student Latanya Sweeney sliced and diced U.S. Census data and found that 87 percent of the population can be identified using only their date of birth, zip code, and gender.

This fall, Paul Ohm of the University of Colorado Law School published a study on the "surprising failure of anonymization." He writes that we have "labored beneath a fundamental misunderstanding, which has assured us much less privacy than we have assumed. This mistake pervades nearly every information privacy law, regulation, and debate, yet regulators and legal scholars have paid it scant attention."

As Ohm notes, while the tech community has become very aware of the privacy issues surrounding large data sets over the last several years—Google has fought off broad government subpoenas demanding search queries, even though the feds weren't asking for personal information about users—Oklahoma state legislators don't seem to have gotten the memo. And it's safe to assume that federal legislators will suffer from the same problem. For now, the Oklahoma rules are on hold while a court considers a challenge to the law. The hearing was postponed this week, after a second judge recused herself from the case. But this won't be the last time courts have to consider the viability of laws like Oklahoma's. And as the federal government gets more involved with health care, the feds will be looking for ways to get more bang for their regualtory buck. One of the likely results: More disclosure mandates, so that we can all be part of the great, ongoing statistics project whether we like it or not.

There's an old(ish) adage that the Internet treats censorship as a malfunction, and routes around it. There's a corollary for online data, voiced by Sweeney, now of Harvard’s Center for Research on Computation and Society, who has said that “data tend to flow around and get linked to other data.” Stripping out information about names and addresses isn't enough to keep data secure. Digital data sets don't stay isolated. And as Ohm notes, this illustrates a central reality of data collection: "Data can either be useful or perfectly anonymous but never both."

Katherine Mangu-Ward is a senior editor at Reason magazine.
Title: Forfeiture's Tenfold Increase
Post by: Body-by-Guinness on December 04, 2009, 07:30:30 PM
Second post:
Reason Magazine

Cash-Strapped Police Departments Find New Source of Revenue: Stealing!

Radley Balko | December 4, 2009

But under the color of law, of course. All thanks to the wonderful world of asset forfeiture.

The way Krista Vaughn sees it, Wayne County fined her $1,400 even though police and prosecutors admit she broke no laws.

Vaughn, who has no criminal record, was required to pay for the return of her car, which was seized by police after they mistook Vaughn's co-worker for a prostitute. Even though prosecutors later dropped the case, Vaughn still had to pay.

Her story is not unusual. In Wayne County, law enforcement officials regularly seize vehicles without levying charges -- even in cases in which they later concede no law was broken. The agency provides perhaps the most prolific and egregious example of what critics contend is the wrongful use of laws allowing the seizure of private property.

It's a practice that's paying off. The Wayne County Sheriff's Office, which helps run the prosecutor's forfeiture unit, took in $8.69 million from civil seizures in 2007, more than four times the amount collected in 2001. The Wayne County Prosecutor's Office gets up to 27 percent of that money.

The article is part of a Detroit News series on an explosion in forfeiture cases in and around the crumbling city. From an earlier article in the series:

"We're trying to fight crime," said Police Chief Mike Pachla of Roseville, where the money raised from forfeitures jumped more than tenfold, from $33,890 to $393,014.

"We would be just as aggressive even if there wasn't any money involved."

Roseville had among the most dramatic increases over the five-year period examined by The News. But several other agencies also more than doubled their takes, including Novi, Trenton, Farmington Hills, Southfield, the Michigan State Police, Shelby Township, Livonia, Warren and Romulus.

The increase in money coming in leads to a higher percentage of the police budget being covered by seizures. In Roseville, the share of the police budget raised from forfeitures went from 0.3 percent to 4.2 percent. In Romulus, it jumped from 4.5 percent to 11.2 percent from 2003-2007, the most recent years for which comparable records were available.

I have a feature on asset forfeiture coming in the February 2010 issue of Reason. Forfeiture critics I interviewed for the article say there's good reason to think laws that send forfeiture proceeds back to prosecutor offices may be unconstitutional. Whereas police only make the initial seizure, prosecutors actually make the policy decision of determining which cases to take. Dicta in prior U.S. Supreme Court cases indicates the Court may find due process problems with those same offices then materially benefiting from those decisions.

The Civil Asset Forfeiture Reform Act of 2000 quelled a lot of the debate on this issue. But that law only applies to federal police agencies. Most of the more egregious forfeiture cases now happen at the state and local level.

In September I wrote a column on Alvarez v. Smith, the forfeiture case that will be decided early next year by the Supreme Court. That case is a challenge to a provision in the Illinois forfeiture laws that allow police to keep seized property a year or more before a claimant can have his day in court to get it back. This is particularly harsh on low-income people who may rely a seized car to get to work, or to shuttle kids around.

It's worth noting that Obama's Justice Department filed an amicus brief on behalf of the state in that case. They weren't obligated to. Though the solicitor general's office is charged with defending all federal laws, the law at issue in Alvarez is a state law, not a federal one. In fact, federal civil forfeiture laws are much friendlier to property owners. So you could make a decent case that the administration could have argued against the Illinois law. At the very least, it could have kept quiet. Instead, it argued that the state should retain the power to take property from people without ever charging a crime (and not necessarily kingpins—the Illinois law in question applies only to property valued at under $20,000), and keep that property for a year or more before affording the owner a chance to get it back.

Taking property from poor people without due process of law in order to enrich local police departments. Seems like the sort of thing Barack Obama might have fought to change in his days as a community organizer.
Title: Time for a 28th Amendment:
Post by: Body-by-Guinness on December 07, 2009, 08:26:35 AM
I'm down with this. Tired of these pompous fools exempting themselves from all they foist:

Poll: Is it time to pass a 28th Amendment to the U. S. Constitution?
December 7, 2:40 AM
Fort Worth Christianity & Culture Examiner
Rene Girard

"I do not believe that the Constitution was the offspring of inspiration, but I am satisfied that it is as much the work of a Divine Providence as any of the miracles recorded in the Old and New Testament." ~ Benjamin Rush *

What is the Constitution? 

The Constitution of the United States is the most important document in United States history following the Declaration of Independence.  It was signed September 17, 1787 by George Washington, James Madison, Alexander Hamilton, Benjamin Franklin and thirty-five (35) others with "the Unanimous Consent of the States" in order to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty" for "We the People of the United States."

The Constitution establishes the legislative powers that govern our nation via Congress "which shall consist of a Senate and House of Representatives."  It also establishes the power of the President, Vice-President, all civil officers, the Supreme Court, and how each State and it's citizens shall be governed by those powers.

Just two years later in 1789 the Bill of Rights was established "in order to prevent misconstruction or abuse of its powers" by adding ten (10) Amendments to the Constitution.  Over the next 200+ years, seventeen (17) more Amendments have been added for a grand total of twenty-seven (27) Amendments.  These include such notable favorites as the 22nd Amendment which limits a President to no more than two (2) terms, and the 26th Amendment (Passed by Congress March 23, 1971; Ratified July 1, 1971) which allows citizens the right to vote at age eighteen (18).

Time for a New Amendment?

Now there is a new idea circulating amongst U.S. citizens on the internet:  A 28th Amendment to the Constitution.  It has sprung out of a very real need for the politicians in Washington D.C. to have the same rights and privileges as the people they represent.  No more and no less.

It only makes sense that those men and women, who are a mere sampling of the people they represent, be United States citizens who are subject to all of the same laws and rules under which United States citizens live.

Therefore the 28th Amendment could read as such:

     "Congress shall make no law that applies to the citizens of the United States that does not apply
      equally to United States Senators and those of the House of Representatives; likewise, Congress
      shall make no law that applies to the Senators or Representatives that does not apply equally to
      the citizens of the United States."

How This Concept could be Applied

In relation to such controversial topics as Government-run health care, we need not fear that our elected officials will pass into law that which they themselves have not approved out of due diligence for themselves and their loved ones. And if by law our elected officials are entitled to health care for the rest of their lives, we their fellow citizens can be assured that we will too shall receive the same health care for the rest of our lives.

Sticking to our Principals

If we still operate under the principals of our Declaration of Independence and believe "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed", then whatever power these Government officials have, that power is derived from us, those who are governed, and we acknowledge that these officials are equal, not inferior or superior to us.

So for those who ascribe to the concept that some people are more equal than others, this 28th Amendment to the Constitution will help to ensure it simply is not so - at least, not here in America.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 07, 2009, 09:00:03 AM
Makes sense to me.
Title: POTH editorial
Post by: Crafty_Dog on December 14, 2009, 07:19:15 AM
An exhibit in the legal reasoning of liberal fascism from todays Pravda on the Hudson-- the New York Times:

Eminent Domain in New York Sign in to Recommend
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A New York State appellate court has misguidedly put a roadblock in the way of Columbia University’s expansion plans, ruling that the state misused eminent domain to help Columbia assemble the land it needs. This decision conflicts with the relevant law and will make it much harder for the university to move ahead with a project that would benefit the surrounding neighborhood and the entire city.

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Times Topics: Columbia University | Eminent DomainColumbia is outgrowing its Morningside Heights campus and is planning a major expansion north into West Harlem that would include school buildings, laboratories and publicly accessible open space. It would allow the school to better pursue its important missions of education and research. It would also provide the community with jobs and amenities, including widened, pedestrian-friendly streets and space for local artists.

To secure enough land, the university is relying in part on the Empire State Development Corporation’s eminent domain power, compelling holdout commercial property owners to sell. Several of the holdouts sued, arguing that the use of eminent domain was illegal.

In a weakly reasoned decision, the Appellate Division of the State Supreme Court agreed, by a 3-to-2 vote. The majority took the peculiar position that there is no civic purpose behind Columbia’s decision to expand.

The decision is completely out of step with eminent domain law, including a recent 6-to-1 decision from the New York State Court of Appeals, the state’s highest court. That court ruled that Brooklyn’s Atlantic Yards, a commercial development, can use eminent domain to secure land to build new housing and a basketball arena for the Nets. That was the right decision, and the case for Columbia is even stronger.

The civic purpose in the Columbia expansion is clear, given the contributions it would make to education, the job market and community life. The Empire State Development Corporation also made a thoroughly defensible decision that eminent domain was appropriate given the blighted condition of the land at issue, between 125th and 133rd Streets near the Hudson River.

The university says it intends to move forward on a center for interdisciplinary neuroscience, which would be built on land it already owns. But it is regrettable that much of the project is now stalled. The Court of Appeals should hear the case on an expedited schedule and reverse the Appellate Division’s ruling.
Title: Did Obama exempt Interpol from same legal constraints as American law-enforcemen
Post by: G M on December 23, 2009, 12:13:39 PM

Did Obama exempt Interpol from same legal constraints as American law-enforcement?
posted at 2:55 pm on December 23, 2009 by Ed Morrissey

During his presidency, Ronald Reagan granted the global police agency Interpol the status of diplomatic personnel in order to engage more constructively on international law enforcement.  In Executive Order 12425, Reagan made two exceptions to that status.  The first had to do with taxation, but the second was to make sure that Interpol had the same accountability for its actions as American law enforcement — namely, they had to produce records when demanded by courts and could not have immunity for their actions.
Barack Obama unexpectedly revoked those exceptions in a change to EO 12425 last month, as Threats Watch reports:
Last Thursday, December 17, 2009, The White House released an Executive Order “Amending Executive Order 12425.” It grants INTERPOL (International Criminal Police Organization) a new level of full diplomatic immunity afforded to foreign embassies and select other “International Organizations” as set forth in the United States International Organizations Immunities Act of 1945.
By removing language from President Reagan’s 1983 Executive Order 12425, this international law enforcement body now operates – now operates – on American soil beyond the reach of our own top law enforcement arm, the FBI, and is immune from Freedom Of Information Act (FOIA) requests. …
After initial review and discussions between the writers of this analysis, the context was spelled out plainly.
Through EO 12425, President Reagan extended to INTERPOL recognition as an “International Organization.” In short, the privileges and immunities afforded foreign diplomats was extended to INTERPOL. Two sets of important privileges and immunities were withheld: Section 2© and the remaining sections cited (all of which deal with differing taxes).

And then comes December 17, 2009, and President Obama. The exemptions in EO 12425 were removed.
Section 2c of the United States International Organizations Immunities Act is the crucial piece.
Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable. (Emphasis added.)
Inviolable archives means INTERPOL records are beyond US citizens’ Freedom of Information Act requests and from American legal or investigative discovery (“unless such immunity be expressly waived.”)
Property and assets being immune from search and confiscation means precisely that. Wherever they may be in the United States. This could conceivably include human assets – Americans arrested on our soil by INTERPOL officers.
Actually, that last argument overreaches.  American law does not consider people as “assets.”  It does mean, though, that Interpol officers would have diplomatic immunity for any lawbreaking conducted in the US at a time when Interpol nations (like Italy) have attempted to try American intelligence agents for their work in the war on terror, a rather interesting double standard.
It also appears to mean that Americans who get arrested on the basis of Interpol work cannot get the type of documentation one normally would get in the discovery process, which is a remarkable reversal from Obama’s declared efforts to gain “due process” for terrorists detained at Gitmo.  Does the White House intend to treat Americans worse than the terrorists we’ve captured during wartime?
Andy McCarthy wonders the same thing:
Interpol’s property and assets are no longer subject to search and confiscation, and its archives are now considered inviolable. This international police force (whose U.S. headquarters is in the Justice Department in Washington) will be unrestrained by the U.S. Constitution and American law while it operates in the United States and affects both Americans and American interests outside the United States.
Interpol works closely with international tribunals (such as the International Criminal Court — which the United States has refused to join because of its sovereignty surrendering provisions, though top Obama officials want us in it). It also works closely with foreign courts and law-enforcement authorities (such as those in Europe that are investigating former Bush administration officials for purported war crimes — i.e., for actions taken in America’s defense).
Why would we elevate an international police force above American law? Why would we immunize an international police force from the limitations that constrain the FBI and other American law-enforcement agencies? Why is it suddenly necessary to have, within the Justice Department, a repository for stashing government files which, therefore, will be beyond the ability of Congress, American law-enforcement, the media, and the American people to scrutinize?
I seem to recall the Left getting hysterical over the Patriot Act extensions that Obama finally backed.  This gives Interpol a much wider operational latitude than anything contemplated in the Patriot Act, and with no accountability at all.
Title: Newt Gingrich
Post by: Crafty_Dog on December 30, 2009, 10:15:03 AM
Newt Gingrich in fine form:
Title: Re: Newt Gingrich
Post by: michael on January 01, 2010, 09:47:43 AM
Newt Gingrich in fine form:

THAT is awesome.
Title: WSJ: Health Care bill is Unconstitutional
Post by: Crafty_Dog on January 02, 2010, 08:01:58 AM
President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Some have argued that Congress may pass any legislation that it believes will serve the "general welfare." Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.

View Full Image

Associated Press
Barack Obama.
.A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.

The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.

This hardly exhausts the list of constitutional problems with this legislation, which would take the federal government into uncharted political and legal territory. Analysts, scholars and litigators are just beginning to examine the issues we have raised and other issues that may well lead to future litigation.

America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.

Mr. Hatch, a Republican senator from Utah, is a former chairman of the Senate Judiciary Committee. Mr. Blackwell is a senior fellow with the Family Research Council and a professor at Liberty University School of Law. Mr. Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
Title: WSJ: NY, Columbia, Eminent Domain
Post by: Crafty_Dog on January 02, 2010, 08:10:47 AM
second post

New York

Columbia University is one of New York's largest landowners, and perhaps the one with the most to gain from the state's power to seize private property. But in a surprise ruling in early December, a state court struck down the city's attempt to take private land in West Harlem and give it to the university. Now that case is becoming an important beachhead in the fight over eminent domain.

Columbia wants the land as part of its 17-acre plan to build a research and academic facility. A decade ago it started acquiring as much of the land as it could. In recent years, however, a few holdouts were impossible to dislodge. The university turned to the Empire State Development Corporation (ESDC), a public company that has the power to compel landowners to sell through eminent domain.

Columbia contends that its academic center will upgrade the neighborhood, create 6,900 jobs, and make immense contributions in biotechnology and health research. There is little reason to doubt any of these assertions. Columbia is one of the nation's leading research institutions and New York City's seventh-largest private employer.
.But should its importance entitle the university to take property owned by others?

Nick Sprayregen, a 47-year-old businessman, says no. He owns Tuck-It-Away Self-Storage, which is located in a brick building inside the footprint of Columbia's project. The business was started by his father in 1980, and he intends to pass it along to his children. So he joined a lawsuit to keep his land. He claims that taking his property would violate the state's constitution. The state can seize land that is considered blighted, but he argues that his neighborhood is sound and had been steadily improving before Columbia launched its expansion plans. He notes that there are excellent new restaurants that have sprung up in the neighborhood, and there are also nice artist studios and lofts, rehabilitated, city-owned apartment buildings, and successful manufacturers.

He acknowledges there is some blight but blames Columbia for it. As recently as August 2002, data prepared by the accounting firm of Ernst & Young for New York City's Economic Development Corporation showed that 54 of the 67 lots in question were in good, very good or fair condition. In November 2007, a study by AKRF Consultants reached a dramatically different conclusion—that the area was "substantially unsafe, unsanitary, substandard, and deteriorated."

What happened, argues Mr. Sprayregen, was that Columbia had increased its ownership or control from a handful of properties in 2001 to 51% in 2007 and 91% of the area today. Along the way it let the properties decay by erecting ugly scaffolding, pushing out commercial tenants, and allowing trash to pile up.

In all, Mr. Sprayregen put 10,000 pages of documents into the court record to show that West Harlem was not blighted before Columbia began its plans. "Is it fair to reward a private entity for its own bad conduct, its own role in producing neighborhood deterioration?" he asks.

State Supreme Court Justice James Catterson seems to agree with Mr. Sprayregen that it isn't. In ruling against Columbia on Dec. 3, he wrote that the use of eminent domain "to benefit a private elite education institution is violative of the Takings Clause of the U.S. Constitution, of the New York Constitution, and the 'first principles of the social contract.'"

Judge Catterson also wrote that "the blight designation in the instant case is mere sophistry. It was utilized by ESDC years after the scheme was hatched to justify the employment of eminent domain but this project has always primarily concerned a massive capital project for Columbia."

Judge Catterson's decision sets up a conflict that will likely shape how eminent domain is used in the future. Just a week before he issued his ruling, New York's highest court, the Court of Appeals, decided in Goldstein et al. v. Urban Development Corporation that ESDC could seize private property in Brooklyn and hand it over to Forest City Ratner, a private developer.

That case was a big setback for private property advocates, who had spent years trying to curtail the use of eminent domain and who got a bump in public support after the U.S. Supreme Court ruled in Kelo v. the City of New London (2005) that states could seize private land as part of private development projects.

Now, in the wake of Judge Catterson's ruling, the state's Court of Appeals will likely have to take the issue up again if the case is appealed. Perhaps this time it will impose strict limits on when the power of eminent domain can be used.

State Sen. Bill Perkins, a Harlem Democrat and chairman of the committee on corporations, authorities and commissions, doesn't want to leave it to the courts. He held one public meeting on Judge Catterson's ruling before Christmas and is planning a second this coming week. He also fired off a letter to Democratic Gov. David A. Paterson asking him not to appeal Judge Catterson's ruling, and to impose a "statewide moratorium on the use of eminent domain" until the state legislature can pass legislation that specifies how the power can be used.

The governor hasn't decided what to do, but he doesn't have the luxury of sitting on the sidelines forever. With two conflicting court decisions and a brewing controversy, the legislature will almost certainly pass something that will force him to choose sides.

If Judge Catterson's ruling stands, Mr. Sprayregen he says he will keep running his business. He once told me, "I can coexist with Columbia. Why can't Columbia coexist with me?"

Ms. Vitullo-Martin is director of the Center for Urban Innovation at the Regional Plan Association.
Title: POTH: Election Law vs. First Amendment
Post by: Crafty_Dog on January 09, 2010, 06:50:48 AM
Courts Roll Back Limits on Spending in Election Law
Published: January 8, 2010

WASHINGTON — Even before a landmark Supreme Court ruling on campaign finance law expected within days, a series of other court decisions is reshaping the political battlefield by freeing corporations, unions and other interest groups from many of the restrictions on their advertising about issues and candidates.

Legal experts and political operatives say the cases roll back campaign spending rules to the years before Watergate. The end of decades-old restrictions could unleash a torrent of negative advertisements, help cash-poor Republicans in a pivotal year and push President Obama to bring in more money for his party.

If the Supreme Court, as widely expected, rules against core elements of the existing limits, Democrats say they will try to enact new laws to reinstate the restrictions in time for the midterm elections in November. And advocates of stricter campaign finance laws say they hope the developments will prod the president to fulfill a campaign promise to update the presidential campaign financing system, even though it would diminish his edge as incumbent.

Many legal experts say they expect the court to use its imminent ruling, in the case of Citizens United v. Federal Election Commission, to eliminate the remaining restrictions on advertisements for or against candidates paid for by corporations, unions and advocacy organizations. (The case centers on whether spending restrictions apply to a conservative group’s documentary, “Hillary: The Movie.”)

Even if the court rules more narrowly, legal experts and political advocates say that the 2010 elections will bring the first large-scale application of previous court decisions that have all but stripped away those restrictions. Though the rulings have not challenged the bans on direct corporate contributions to parties and candidates, political operatives say that as a practical matter the rulings and a deadlock at the Federal Election Commission have already opened wide latitude for independent groups to advocate for and against candidates.

“It will be no holds barred when it comes to independent expenditures,” said Kenneth A. Gross, a veteran political law expert at the firm of Skadden Arps in Washington.

The United States Chamber of Commerce, the goliath of the lobbying world, is expected to outline its battle plan next week for the midterms. It spent $25 million on advertisements and get-out-the-vote efforts in the 2006 elections and $36 million in 2008, and will spend far more this year, chamber officials say. And in the last election it was already probing the limits of the court’s rulings with commercials like one in New Hampshire denouncing Senator Jeanne Shaheen, a Democrat, as “a taxing machine.”

Labor unions, stalwart outside allies to the Democrats, plan to take advantage of the changing rules with their own record-setting spending, said Karen Ackerman, political director of the A.F.L.-C.I.O. But business, she argued, had more to gain.

“The corporate side will always have more to spend than the union side,” she said.

Even before the Supreme Court issues its Citizens United ruling, Democrats in the House and the Senate have begun lamenting its expected result. “Clearly, the Republican Party overwhelmingly would benefit,” said Senator Robert Menendez of New Jersey.

Representative Chris Van Hollen of Maryland vowed a “prompt legislative response” if the Supreme Court rules broadly. In the meantime, he said, the Democratic campaign committee planned to counterattack big donors to outside groups to show “they are not just disinterested citizens.”

Conservatives accused the Democrats of using the specter of corruption as an excuse to silence their opponents. “What this is about is prohibiting information from reaching the American people if it is critical of them, those poor little dears who can’t stand criticism,” said Wayne LaPierre, chief executive of the National Rifle Association.

Senator John Cornyn of Texas, chairman of the Republican Senate campaign committee, said: “It is about a nonprofit group’s ability to speak about the public issue. I can’t think of a more fundamental First Amendment issue.”

Still, Mr. Cornyn acknowledged that the expected ruling could “open up resources that have not previously been available” for the Republicans.

Democratic candidates and party committees have raised a total of $396.5 million for the midterms, with $50 million on hand and $10 million debts in public filings released this week. Republicans had raised just $204.7 million, with about $30 million on hand and about $6 million in debts, according to the nonpartisan Center for Responsive Politics.

The campaign finance system imposed after the Watergate scandal began to spring leaks in the 1990s with the large-scale exploitation of unlimited “soft money” contributions to political parties from wealthy individuals, corporations, unions and others. Congress fortified those rules by eliminating soft money with the 2002 campaign finance law known as McCain-Feingold, and since then activists and operatives have played cat-and-mouse with regulators in the search for other loopholes.

The Supreme Court began to poke new holes in the system in a 2007 ruling that outside groups could pay for critical commercials attacking individual candidates on specific issues up to the day of the election, as long as the ad did not explicitly urge a “vote for” or “vote against.”

The 2010 midterms will be the first big test of the changing rules in part because in 2008 both major party candidates — Mr. Obama and Senator John McCain — explicitly discouraged independent spending by their supporters. The Federal Election Commission had also punished previous efforts to evade the McCain-Feingold rules severely enough to discourage new attempts.

No such restraints apply this year, in part because the changing composition of the Federal Election Commission has created a deadlock blocking vigorous enforcement. “The cop is gone from the beat,” said Trevor Potter, a lawyer for the nonpartisan Campaign Legal Center who has also worked for Mr. McCain.

Campaign finance laws block outside groups from coordinating with candidates, but it is easy enough for outside allies to read in news reports where a campaign wants to spend money and what message it wants to send. Such groups also tend to favor negative commercials because they are more potent.

So if the court strikes down the restrictions on outside spending, some legal experts say, the remaining restrictions on direct contributions to campaigns would mean much less because it would be easy to support a campaign through an outside group.

“The campaign finance system would certainly be less regulated than any time since Watergate,” said Richard L. Hasen, a campaign law expert at the Loyola Law School in Los Angeles.
Title: Meese: Prop 8
Post by: Crafty_Dog on January 11, 2010, 05:41:10 AM
Stacking the Deck Against Proposition 8 Recommend
January 10, 2010

THE much-anticipated trial to determine the constitutionality of California’s Proposition 8 is scheduled to begin this morning in the case of Perry v. Schwarzenegger. What’s at stake in this case, filed in federal district court in San Francisco on behalf of two gay couples, is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman, but also whether marriage may be otherwise defined in any state.

The entire premise of this litigation is disquieting — that traditional marriage is nothing but “the residue of centuries of figurative and literal gay bashing,” as David Boies, a lawyer for the plaintiffs, has written. According to the plaintiffs, there is just no rational basis for government to privilege marriage between a man and a woman. Thus, in their minds, Proposition 8, which was supported by more than seven million California voters, could have been adopted only as a result of “animus,” as the complaint puts it, toward gays and lesbians.

It’s disquieting that the trial is taking place in San Francisco, probably the venue most likely to support gay marriage. More than 75 percent of San Francisco voters opposed Proposition 8. That’s quite a home-court advantage for same-sex marriage advocates.

But most disquieting for supporters of traditional marriage is a series of pretrial rulings issued by Judge Vaughn R. Walker that have the effect of putting the sponsors of Proposition 8, and the people who voted for it, on trial.

Judge Walker’s decisions have been surprising because they differ from those of other judges who have previously scrutinized marriage laws — in Iowa, Hawaii, Massachusetts, New Jersey and elsewhere in California, for example. In those instances, the courts have decided legal challenges to state marriage laws based on legislative history, scholarly articles and testimony by social scientists and other experts. They have, in some cases, looked for evidence of legislative intent in the statements published in official voter information pamphlets.

But in this case, Judge Walker has ruled that things like TV advertisements, press releases and campaign workers’ statements are also relevant evidence of what the voters intended. The judge went so far as to order the Proposition 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He has even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.

Most troubling, Judge Walker has also ruled that the trial will investigate the Proposition 8 sponsors’ personal beliefs regarding marriage and sexuality. No doubt, the plaintiffs will aggressively exploit this opportunity to assert that the sponsors exhibited bigotry toward homosexuals, or that religious views motivated the adoption of Proposition 8. They’ll argue that prohibiting gay marriage is akin to racial discrimination.

To top it all off, Judge Walker has determined that this case will be the first in the Ninth Circuit to allow cameras in the courtroom, with the proceedings posted on YouTube. This will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment and bullying attacks already used by some of those who oppose the proposition.

Thankfully, some of Judge Walker’s rulings have been overturned. For example, the Ninth Circuit Court of Appeals blocked the disclosure of internal communications among the core Proposition 8 organizers. But there is no question that virtually every ruling by Judge Walker so far has put advocates of traditional marriage at an increasing disadvantage.

Despite this, during the trial, the supporters of Proposition 8 will work hard to demonstrate that it was rational for voters to conclude that marriage is a unique institution that promotes the interests of child-rearing, and that those interests are broader than the personal special interests of the adults involved. And they’ll make the case that voters were very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage — or any other subject.

It remains to be seen whether traditional marriage, and the rights of the voters who approved Proposition 8, will prevail in Judge Walker’s courtroom. Most likely, no matter how the judge rules, the Perry case is destined for appeals and a final decision in the United States Supreme Court. But it is during the present trial that the facts in the case will be determined, and it is there that the two sides should be able to present their cases on a level playing field.

Edwin Meese III, a fellow at the Heritage Foundation, was attorney general of the United States during the Reagan administration.
Title: 1st Amendment Applies to Political Speech, Go Figure
Post by: Body-by-Guinness on January 21, 2010, 09:10:23 AM
Supreme Court rejects limits on corporate spending in electoral campaigns
By Robert Barnes
Washington Post Staff Writer
Thursday, January 21, 2010; 11:57 AM

A divided Supreme Court on Thursday swept away decades of legislative efforts to restrict the role of corporations in election campaigns, ruling that severe restrictions on corporate spending are inconsistent with the First Amendment's protection of political speech.

The court split 5 to 4 over the ruling, with its conservative members in the majority.

"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," the court said in a decision written by Justice Anthony M. Kennedy. "This is unlawful. The First Amendment confirms the freedom to think for ourselves."

The decision upends the court's precedent that corporations may not use their profits to support or oppose candidates, and it rejects a large portion of the so-called McCain-Feingold campaign finance reform act that the justices had declared constitutional just six years ago. It seems likely to apply to the political role of labor unions as well.

The decision does not address the restriction on direct contributions to candidates, and it upholds disclosure requirements for groups that mount advertising campaigns for and against candidates.

The far-reaching ruling marks a triumph for groups that have fought the McCain-Feingold provisions, formally known as the Bipartisan Campaign Finance Reform Act of 2002.

It also is a telling reminder of how quickly a court can change. Justice Sandra Day O'Connor supported the constitutionality of the act in 2003. But Chief Justice John G. Roberts Jr. and O'Connor's replacement, Justice Samuel A. Alito Jr., have supported each challenge to the law since they have joined the court. They supported Kennedy's opinion, along with Justices Antonin Scalia and Clarence Thomas.

The court's liberal bloc, which included new Justice Sonia Sotomayor in the case, dissented. Justice John Paul Stevens took more than 20 minutes to read a dissent from the bench, a move justices reserve for emphasizing their disagreement.

"A radical change in the law," Stevens called the decision. He said Thursday's majority rejects the decisions of Congress dating from 1907 and "the overwhelming majority of justices who have served on this court."

He said the five-member majority are the only ones who believe corporate money in electoral politics should be increased, rather than controlled. Sotomayor and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined his 90-page dissent.
Title: Scalia Skewers
Post by: Body-by-Guinness on January 21, 2010, 04:30:43 PM
2nd post.
Reason Magazine

Antonin Scalia vs. John Paul Stevens

Damon W. Root | January 21, 2010

Counting the majority opinion and the various partial concurrences and dissents, today’s landmark First Amendment decision in Citizens United v. Federal Election Commission clocks in a hefty 183-pages. But one thing that jumped right out while reading the dissent (it’s also a concurrence, in parts) written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, is Stevens' angry tone. He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation “a glittering generality” with no foundation in the law, and later declares, “Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Well!

But most significantly, Stevens accuses the majority of making “only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment.” Stevens even cites the influential legal conservative Judge Robert Bork to impugn the majority’s originalist credentials. That's not something you see everyday.

Justice Antonin Scalia, however, isn’t having it:

I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”... This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored....

The [First] Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals--and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on January 21, 2010, 08:21:20 PM
It's been a few good days!  :-D
Title: McD v. Chi Town Brief
Post by: Body-by-Guinness on January 29, 2010, 05:18:27 PM
Alan Gura has filed his final brief in McDonald v. Chicago. My quick assessment is that he pulled few punches. Devastating stuff. Full text here:

An excerpt:

Unable to articulate the correct standard for substantive due process incorporation, or interpret the Privileges or Immunities Clause, Respondents offer irrelevant political arguments against applica- tion of the right to keep and bear arms against the States, failing to accept that the decision to secure the right in our Constitution has already been made.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Rarick on January 30, 2010, 05:44:33 AM
Gah! legallese, what I do understand of it, he is throwing with boths fist and foot, knee and elbow as opportunity permits. 
Title: First Amendment 451
Post by: Crafty_Dog on February 02, 2010, 09:41:00 AM

JANUARY 29, 2010 4:00 A.M.
First Amendment 451
How one man irked Obama and won a historic victory for free speech.
David Bossie irritates President Obama. Bossie did not get the usual upturned chin or expletive-riddled call from Rahm Emanuel this week after the Supreme Court ruled in favor of Citizens United, his non-profit corporation, in a landmark free-speech decision. Rather, Obama decided to take a potshot through a sharp-edged rant tucked into the State of the Union.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”

Bossie’s take on Obama’s finger-wagging was similar to what Justice Samuel Alito mouthed, and similar to the analysis Bradley A. Smith and Shannen Coffin have presented on the Corner: “Not true.” Foreign corporations, Bossie says, are prohibited from making contributions in connection with American elections, and that wasn’t even at issue in the case. The president’s anger over the Court’s 5–4 decision, he adds, actually reveals something more troubling: Obama doesn’t like it when someone tries to snatch power from the federal government and put it back in the hands of the American people.

“Our argument in the case wasn’t complicated,” says Bossie. “It was about freedom, and it ended up hinging on a very simple question: If the FEC is comfortable banning political films, like Citizens United’s Hillary: The Movie, around election time, would it also be fine with banning political books financed by corporations? The Justice Department’s attorney answered yes, the government did have the power to prohibit the publication of a book. When they admitted that, everything changed.”

“I think that answer sent a chill through the Court,” says Bossie. “It was that moment that was a catalyst for us, and gave us the opportunity to win on much bigger constitutional grounds than we anticipated. It became apparent that the government believed that they could ban anything: movies, books, pamphlets, the Kindle, you name it. It was a shocking revelation.”

Ted Olson, the former solicitor general who represented Citizens United before the Court, says that he’s not surprised at what Bossie has been able to accomplish. “I’ve known Dave for a decade,” he says. “I’ve always admired what he does. When we got together to discuss this case, I knew we could win. He had other attorneys before me, but for this last step, he brought me on. We spent a lot of time looking at the arguments from the court below, and realized after our oral argument in March 2009 that we could argue that precedents could be overturned. That’s when we knew we had traction.”

“President Obama and his party are worried that this decision means that big corporations will dominate politics. They’re wrong,” says Olson. “The Court’s decision was about opening up the political process to individual corporations and small corporations, to create a more favorable balance and open up free speech to everyone.”

So how did Bossie, an unknown outside the Beltway, become the new hero for political speech? It all starts with Bill and Hillary. Before becoming a producer of political films at Citizens United, Bossie was what the Clintons would call a card-carrying member of the vast right-wing conspiracy. He was the chief Whitewater investigator for the House GOP in the 1990s. He also investigated the foreign-fundraising problems in Bill Clinton’s 1996 reelection campaign.

Those experiences, says Ed Gillespie, Bossie’s old friend and former chairman of the Republican National Committee, helped to prepare him for a historic Supreme Court battle.. “Dave pushed this free-speech issue and saw opportunity when very few others did,” says Gillespie. “He understood its significance from the outset, and now he’s changed the political environment.”

Since the big win, Bossie has been assailed by the Left. Not that he cares. He doesn’t apologize for his past investigations into the Clintons, and shrugs off criticism that his motives for suing the FEC were purely political. “This case wasn’t just about me or Citizens United,” he says. “It was about standing up for the principles of our Founding Fathers.” He points to the support he garnered from the American Civil Liberties Union as an example of how this wasn’t about “conservative demagoguery.”

“When I heard the ACLU was supporting us, I had to question myself for a moment,” Bossie laughs. “I mean, wow, I’ve never had their support, ever. Think about this: One of our films was called ACLU: At War With America. To have them agreeing with us, plus the AFL-CIO and the Reporters Committee for the Freedom of the Press — both not exactly bastions of conservatism — was a sign of how powerful our position was. I’m eternally grateful to all them for bringing forward a view of how important this was to groups across the political spectrum.”

“The FEC believed that they have a mandate to tell the American people what they can and cannot do when it comes to an election,” says Bossie. “We’ve always been under the impression that the FEC believes that it’s not necessarily an inherent right for the American people to speak during an election; it’s only by the grace of the FEC. The oral arguments in this case proved that all to be true. As they’ve taken more and more power, which Congress, via John McCain and Russ Feingold, has happily given them, they’ve encroached on the First Amendment..” Writing for the majority, Justice Anthony Kennedy agreed, quoting a previous case that called political speech “indispensible to decision-making in a democracy and this is no less true because the speech comes from a corporation.”

“It’s a huge, huge symbolic win,” says Andrew Breitbart, the founder of “The Left wants to scare people into thinking that more free speech will be harmful for democracy, but just watch, in five years we’ll laugh with contempt at such arguments. Thanks, in part, to Dave’s great work, Americans are becoming hip to how they’ve been muzzled by our politically correct Sharia system. Conservative opinions may be deemed toxic by the mainstream media, but this new ruling stops their ability to curb speech in this country.”

“Dave’s legal work,” adds Breitbart, “is like what I do with my websites: We’re trying to wrest control of media back from the Left, who have brilliantly taken control over the years and dominated our political and cultural narrative.”

With all due deference to President Obama, the floodgates are now open, not for special interests, but for free speech.

— Robert Costa is the William F. Buckley Jr. Fellow at the National Review Institute.
Title: Buchanan v. Warley
Post by: Body-by-Guinness on February 10, 2010, 05:23:50 PM
The Neglected Case of Buchanan v. Warley
Residential segregation as an infringement of liberty and property rights
Erin Miller | Wednesday, February 10th, 2010 12:05 pm
The following is an essay for our Race and the Supreme Court program by David E. Bernstein, professor at George Mason University School of Law and frequent blogger at the Volokh Conspiracy.  This post is an excerpt from his book, Rehabilitating Lochner, forthcoming in 2011 from University of Chicago Press.

Buchanan v. Warley is one of the most significant civil rights cases decided before the modern civil rights era.  Starting in 1910, many cities in the South, border states, and lower Midwest, responded to a wave of African-American in-migration from rural areas by passing laws mandating residential segregation in housing. More cities were ready to follow suit if the laws survived constitutional challenges.  Several southern state supreme courts upheld the laws against constitutional challenges.  In 1917, however, the Buchanan Court unanimously invalidated a Louisville residential segregation law as a deprivation of liberty and property without due process of law.

Although some scholars have portrayed Buchanan as only vindicating white people’s right to alienate property, the opinion’s text belies that understanding.  The right at issue, according to the Court, was “the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.” “Colored persons,” Justice Day wrote for the Court, “are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.”

The Court rejected each of Kentucky’s asserted police power rationales for upholding the law. Day dismissed the argument that existing “race hostility” was an appropriate rationale for narrowing the scope of citizens’ constitutional rights.  Justice Day added that the legitimate goal of promoting the public peace could not be accomplished “by laws or ordinances which deny rights created or protected by the Federal Constitution.” Nor could the law be justified as promoting the “maintenance of the purity of the races.”  The Court noted that the law did not even prohibit African Americans from working in white households, showing that the law’s target was not race-mixing, per se.

Finally, the Court spurned the claim that the law was necessary to prevent the depreciation in the value of property owned by white people when African Americans became their neighbors.  Day noted that property owned by “undesirable white neighbors” or “put to disagreeable though lawful uses” could cause similar depreciation.

While Buchanan clearly did not lead to a general rollback of de jure segregation, the decision inhibited state and local governments from passing more pervasive and brutal segregation laws, akin to those enacted in South Africa.  Buchanan also did not lead to integration of residential neighborhoods, but it did impede the efforts of urban whites to prevent African Americans from migrating to white neighborhoods and ultimately replacing the white residents. The African-American urban population in the United States almost doubled between 1910 and 1929, and continued to grow in later years.  Individual cities had far more dramatic growth in their African-American population.  For example, the number of African Americans living in Detroit increased from roughly six thousand in 1910 to approximately one hundred and twenty thousand in 1930.

Whites tried to use restrictive covenants to prevent the in-migration of African Americans, but these covenants generally failed to prevent such in-migration.  In some cities, whites lobbied for segregation laws precisely because restrictive covenants had proved ineffective in restricting black settlement.  Not only did cities provide African Americans with more economic opportunity, but the migration of blacks to cities, North and South, was a crucial element in the civil rights movement’s ultimate victory. Among other advantages, it enabled African Americans to increase their political power by moving to areas where they could vote.

Buchanan was also important as a matter of legal doctrine, but it has been unjustly neglected by historians and legal scholars because it doesn’t fit the standard narrative of constitutional development in which equalitarian civil rights jurisprudence is said to have developed entirely apart from, and indeed, in opposition to, liberty of contract and property rights.  Generations of legal scholars and historians have treated Buchanan as a “property rights case” that rested on “laissez-faire” ideology, of little if any relevance to the later civil rights revolution.  Undoubtedly, the fact that Buchanan involved property rights and liberty of contract played an important role in the decision, as it allowed the Court to distinguish Buchanan from Plessy, which involved “mere social rights.”

But focusing myopically on the economic rights element of Buchanan misses the fact that even property rights and liberty of contract were subject to the police power. Plessy had suggested that any “reasonable” segregation law would come within the police power, and the Plessy Court applied a lax–and racism-infused—standard of reasonableness.

In contrast, after noting that property rights are subject to the police power, the Buchanan opinion cited anti-discrimination statutes and court precedents dating back to Reconstruction.  The Court for the first time held that discriminatory animus, even when supported by popular opinion and expert opinion backed by contemporary social science evidence, and justified by fear of miscegenation and racial violence, was not a proper police power justification for laws violating recognized individual rights.  This was hardly a foregone conclusion.

Pre-Buchanan legal commentary universally argued that residential segregation laws were constitutional, and the Buchanan opinion changed few if any minds.  With the exception of a student comment in the Columbia Law Review, all law review commentary was hostile.  A Columbia professor even accused the Court of destroying whites’ right to live in a segregated neighborhood.

Despite this outpouring of criticism, Buchanan marked a favorable turning point in the Court’s attitude toward the rights of African Americans.  According to one tally, the Supreme Court heard twenty-eight cases involving African Americans and the Fourteenth Amendment between 1868 and 1910. Of these, African Americans lost twenty-two. However, between 1920 and 1943, African Americans won twenty-five of twenty-seven Fourteenth Amendment cases before the Supreme Court.

After the Supreme Court confirmed the constitutionality of general residential zoning in 1926 in Euclid v. Ambler Realty, various southern and border-state jurisdictions once again passed residential segregation ordinances, hoping that Euclid signaled a more sympathetic Court attitude to all types of regulation of property.  The Court, however, summarily invalidated these laws in 1927 and 1930.  If the NAACP had had the resources and inclination to pursue the matter, Buchanan could have been used to broader effect to combat de jure segregation in the private sector.

Arguably, Buchanan also shows the potential for a racially egalitarian jurisprudence to have emerged in a political environment far closer to America’s libertarian tradition than what had emerged by the 1950s, when the Supreme Court began to protect the rights of African Americans in earnest.  Indeed, Buchanan, by rejecting the standard police power arguments used to justify segregation, had the potential to be used as a weapon in school desegregation litigation.  This required only that the Court shift its view from segregation in public education as involving a “social right” not implicating the Equal Protection or Due Process Clause, to it infringing an important liberty or property right.  And, in fact, the Court issued a Buchanan-like due process opinion in 1954 in Bolling v. Sharpe, invalidating racial segregation in District of Columbia public schools.  But that is the subject for another blog post.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on February 10, 2010, 10:10:33 PM
That was very interesting.
Title: McDonald-- issues presented
Post by: Crafty_Dog on March 01, 2010, 05:39:15 PM
Pasting here BBG's post today in the Legal Issues thread-- see there also his second post on the Justice who wrote the Miller decision. 

Using Guns to Protect Liberty

Posted by Ilya Shapiro

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights.  The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments.  The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights.  The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens.  This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights.  Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments.  For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation.  Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here.  Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject).  And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).
Title: Guns and Privileges & Immunities in the context of McDonald
Post by: Crafty_Dog on March 04, 2010, 04:07:35 PM
Bringing this rather deep discussion over from BBG's post in the legal issues thread:
Reason Magazine

Guns for All, Privileges or Immunities for None

The hearings in McDonald v. Chicago promise an unrevolutionary victory—but still an important one

Brian Doherty | March 4, 2010

Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.

To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.

The history of the 14th Amendment's passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Since a controversial 1873 Supreme Court decision in a set of cases regarding a slaughterhouse monopoly in Louisiana, known as the Slaughterhouse Cases, the Privileges or Immunities Clause has been pretty much interpreted out of existence. The Supreme Court has instead used the vaguer and less textually sensible “due process of law" provision of the same amendment to incorporate certain rights against the states. Using that tool, the Court over the past century has already incorporated most of the Bill of Rights on the states, and some unenumerated rights as well. Gura elected to reverse this trend by arguing for incorporation of the Second Amendment on privileges or immunities grounds.

So Scalia asked Gura early in his 20 minutes of argument time on Tuesday: “Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due…process?... Why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty…?”

Scalia, reputedly a constitutional originalist, flashed some ugly colors with that laugh-provoking comment: He’d rather go with the easy precedential flow—even given a substantive due process argument that he openly admits he thinks is wrong but which he’s “acquiesced” to—then vindicate the actual intentions of the framers of a very important constitutional amendment.

Gura undoubtedly went for a daring gambit on privileges or immunities (in addition to, not at the expense of, the more traditionally successful due process argument). He did so, first, because he thought it was the correct argument based on constitutional language and history. But he, and many other legal scholars, was also excited because a revival of privileges or immunities could give courts new power to restrict states and localities from violating other rights much on the minds of the 14th Amendment’s framers.

Gura quoted some of them, from the 1866 Civil Rights Act: “To make and enforce contracts…to inherit, purchase, lease, sell, hold and convey real and personal property.” A properly grounded application of the privileges or immunities clause could help vindicate the sort of economic liberties considered out of fashion and meaningless in the higher courts since the early 20th century days of the Lochner case.

While nothing is certain until the decision (or decisions) come down later in the year, the general consensus is that Gura has at least the same five justices who revived the Second Amendment in Heller prepared to apply it to the states via the Due Process Clause. This includes Scalia, despite his expressed doubts about the validity of due process incorporation in general. Thus, Gura and the McDonald team win.

Gura cast his mission so ambitiously, though, that he may have created an unfortunate public relations problem for his team. His impending victory might be spun as a defeat. There were elements in the gun-rights community, including the National Rifle Association (NRA) (who won argument time for their advocate Paul Clement at the hearings even though McDonald was not their case), who thought Gura reached for too risky a victory for economic and other liberties when he should have kept his eye on the Second Amendment ball. The NRA’s Clement kept it simple, insisting before the court that “Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people” and thus should be incorporated against the states just as those other amendments were.

In his half hour before the justices, Chicago’s counsel James Feldman maintained that, since guns can hurt people, localities’ power to protect public safety should allow them to regulate guns as much as they want. Not wanting to re-argue Heller (unlike Justice Steven Breyer, who is still obsessed with the militia clause as presumptively dominating the purpose of the Second Amendment, contra Heller), Feldman asserted that a fundamental right to self-defense might exist, but that right was not infringed fundamentally by the banning of any specific variety of weapon, as Chicago did with handguns. Scalia wondered why Feldman seemed to think an unwritten right to self-defense existed that states should honor when he didn’t think that the written right to keep and bear arms had to be thusly honored.

The confused and random jumble of issues and concerns that flowed out in the hour at the Court shows that, while using due process may be the easiest way out for lazy justices who don’t want to think freshly or step outside a middle-of-the-road consensus, the inherent vagueness of due process makes actual legal reasoning hard—unnecessarily so, given the clearer set of historical concerns about privileges or immunities that were on the minds of the Republicans who pushed the 14th Amendment in the late 1860s.

The absurdity of legal reasoning unmoored from the historical understanding of liberty rights was apotheosized in Breyer’s reference to a "Madison Chart,” in which we decide on how much judicial respect various rights would be granted by imagining James Madison ranking their importance on a chart. Breyer avers, apparently consulting Madison’s shade, that guns for the militia would be listed high on the chart, high above guns to shoot burglars. (Jokes about the “Madison Chart” ought to be law school staples down the line.)

The various justice's particular and often eccentric concerns further muddied any discernible lines of logic at the hearing. Justice Ruth Bader Ginsburg took a poorly conceived swipe at any originalist understanding of what rights the Privileges or Immunities Clause might guarantee by stressing the claim that women didn’t have the right to own property or have occupations separate from their husbands in 1868. (Meaning they wouldn’t now either if Gura won on privileges or immunities grounds?) Both she and Justice Anthony Kennedy tried to dredge a precise answer from Gura as to exactly what rights were protected by his conception of the clause, which he wouldn’t and couldn’t do. That the Constitution was designed to protect the people’s liberties through limiting government’s power and not listing citizens’ rights is not an idea much at the front of the justices’ minds.

Justice John Paul Stevens made it clear again and again that even if incorporated against the states, a Second Amendment right could and even ought to be restricted to the narrowest version of Heller: commonly used weapons for self-defense in the home. Even Scalia made it clear that he doesn’t think state level restrictions on concealed carry would necessarily be in danger under an incorporated Second Amendment, and both Chief Justice John Roberts and Justice Kennedy made it clear that an incorporated Second Amendment does not mean a Second Amendment whose reach was as wide as the gun rights community might like. Roberts spelled it out like this: The Second Amendment “is still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause. All the arguments [Chicago’s lawyer Feldman made] against incorporation it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”

That’s worth remembering as we wait for the decision and its aftermath. In the usual media scrum outside the courtroom as the hearings let out, the Brady Center’s Paul Helmke was OK with losing complete bans on commonly used weapons such as Chicago’s, but insisted most (though he denied many even existed) local gun regulations are sensible public safety measures and would certainly survive future legal challenges even if Gura wins. The NRA’s Paul Clement cagily refused to say what sort of lawsuits the NRA might file challenging other state gun regulations in the event of a McDonald victory.

The future of gun rights, then, is brighter than before, though not as bright as the most tenacious defenders of self-defense rights might like. But what of the future of the Privileges or Immunities Clause? It seems as if the clause arose, goosed by Gura, from a grave that Slaughterhouse had sealed it in, only to promptly have a stake driven through its heart and its head chopped off and then shoved back in to the grave by the decidedly unfriendly approach of the justices. In the pre-hearing debate over whether privileges or immunities had a chance in McDonald, the very fact the court took up Gura’s case as opposed to a simpler due process case from the NRA also up for consideration led some to assume the Court must have wanted a chance to seriously rethink the issue. The evidence from Tuesday morning showed no sign of such interest in privileges or immunities.

However, at a Hill briefing by three privileges or immunities scholars and advocates on Wednesday—Clark Neily of the Institute for Justice, Ilya Shapiro of the Cato Institute, and Timothy Sandefur of the Pacific Legal Foundation—the mood was still defiant, not defeated.

To roughly summarize a set of arguments I heard this week in interviews and at that briefing on the future of privileges or immunities, just as Progressive-era legal doctrinal victories such as “rational review” evolved over generations to overtake the profession, a rising group of younger litigators and legal scholars are united in agreeing that Slaughterhouse was an embarrassment and must go. And scholars and advocates from different sides of the political spectrum, for different reasons, are eager to see privileges or immunities arguments become an active part of the arsenal for courts and lawyers. (Some progressives see in it a stronger chance to cram various welfare rights into the Constitution, though more libertarian fans of the clause think the clearer historical record makes the clause a weaker, not stronger, tool than due process by which to work such legal mischief.)

But no matter what the consensus is, a privileges or immunities victory will eventually have to be won in the Supreme Court, and in my read there is at best one person on the current Court who would vote for it. Justice Clarence Thomas, silent as always in this week’s hearings, has in the past expressed an interest in rethinking privileges or immunities. There’s a strong expectation on the part of some privileges or immunities fans that Thomas will write a concurring opinion uniting in the holding that the Second Amendment is incorporated, but with a separate set of privileges or immunities-based reasoning that could become a rallying flag for future arguments about the clause’s continued value. However, what sort of case might be on the horizon to bring it back before the court is unclear. What seems clear is that at least four justices have to go and be replaced by jurists friendly to the abandoned clause for it to become a meaningful part of American jurisprudence. We will have the privileges or immunities fight with us for a long time to come.

On the night of the hearings, I stepped outside the constitutional debate, and glimpsed the heart of why such high-level abstractions matter—the reason why the Supreme Court was even listening to these arguments. Cases have plaintiffs, and plaintiffs are people. At a reception sponsored by one of the case’s institutional plaintiffs, the Second Amendment Foundation, I met the lead plaintiff, Otis McDonald.

Otis McDonald will be the man—as a plaintiff—who vindicated the rights of every American who doesn’t live in a federal enclave to, at the very least, have adequate means to try to protect their lives, families, and property from violent danger. He’ll go down in the history books, to be sure, this 76-year-old man with a wife and eight kids.

He’s black, which is appropriate for both public relations and for history. It ties the arguments Gura made on McDonald's behalf to why the 14th Amendment exists: to guarantee that people of his color would have the liberties and protections white Americans of the time were supposed to have enjoyed. As Gura declared right at the start of his presentation to the Court, “In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.”

Let me tell you something else about Otis McDonald: If you are lucky enough to meet the guy, you’re going to love him. Really. In about a half hour of conversation, both one-on-one and in a small group, the guy was devastatingly charming, in a completely unstudied way. He’s compelling and convincing and real, telling quotidian stories about being late for planes and late-night fishing; and equally so when getting historical and cosmic about the arc of his life and the role he knows he’s playing in his country’s history. One minute laughing and light, the other giving a sincerely tear-jerking account of the pride and gratitude he feels toward everyone else, especially the younger generation, advancing the scholarship and advocacy of his and his fellow Americans’ rights. After that half hour, I was on this guy’s side, just as a fellow human being. And a dream client for a civil rights case like this to boot, as the lawyers present agreed enthusiastically.

That the city of Chicago prevents this man from making the best choice available to him to protect himself and his family from the very real threats that surround him is, simply and with no constitutional history or theory required, wrong. It is a wrong that Gura's arguments on Tuesday will likely right. And while libertarian legal scholars (and some leftist ones) may feel dejected that Gura failed to win the Court over to the wisdom of overturning Slaughterhouse, McDonald, his fellow plaintiffs, and the rest of Chicago will because of his efforts be able to exercise a core human right unmolested. That is great news, news whose importance should not be clouded by the specifics of how it was won.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
Title: The gun rights vs. tyranny issue
Post by: Crafty_Dog on March 09, 2010, 04:54:27 AM
Behind Supreme Court case: Do gun rights protect against tyranny?
The US Supreme Court is considering what could be a landmark decision on individual gun rights. An unspoken argument is that armed citizens would make any usurper think twice before subverting the Constitution.

An anti-gun control flag during the 'Tea Party' at the Arizona State Capitol in Phoenix April 15, 2009. Nearly 10,000 people attended the rally, which was supposed to be in opposition to the Obama economic plan but turned into a general anti-Obama rally.
By Warren Richey Staff writer
posted March 4, 2010 at 7:44 pm EST

More than 10,000 words were spoken during this week’s historic oral argument over gun rights at the US Supreme Court. But one potentially significant word was never uttered during the hour-long session: tyranny.

Long a focus of debates between gun control advocates and gun rights supporters, the issue was not discussed by lawyers attacking Chicago’s ban on handguns or the lawyer for the city defending local gun regulations. No member of the court mentioned it either. (Monitor analysis of the Chicago case here.)

But the idea is there, just below the surface of what analysts expect to become the high court’s second gun rights landmark decision in as many years.

The basic contention of many gun rights advocates is that the Second Amendment was designed to preserve a large, well-armed, and highly proficient community of gun owners that would make any usurping politician or military commander think twice before attempting to subvert the nation’s constitutional framework.

Founders' intent with Second Amendment
“The Second Amendment … stands as the Founding Fathers’ clear and unmistakable legal statement that an armed citizenry is the bulwark of liberty and provides the fundamental basis for law-abiding Americans to defend themselves, their families, their communities, and their nation against all aggressors, including, ultimately, a tyrannical government,” wrote Daniel Schmutter in a friend of the court brief on behalf Jews for the Preservation of Firearms Ownership.

Mr. Schmutter said the Second Amendment is “the very last line in the defense of American liberty.”

To gun control specialists this argument is deeply troubling. They worry that any armed person with a beef against the government will look to the Second Amendment for encouragement to lock and load and then rain down armed force in the face of what he or she perceives as “tyranny.”

How to define 'tyranny'
“In a world in which ‘tyranny’ means many different things to many different people, it is of paramount importance that the court choose its words carefully when discussing just what is, and what is not, protected by the Second Amendment,” wrote John Schreiber in a friend of the court brief on behalf of the Educational Fund to Stop Gun Violence.

“The Framers plainly did not envision ad hoc groups of armed individuals beyond state control (i.e. a ‘citizens’ militia’) as a constitutional check on tyranny,” Mr. Schreiber wrote. “They saw them as unruly mobs that must be quelled.”

Although it was not discussed during oral argument in the Chicago case, Justice Antonin Scalia addressed the issue briefly in his majority decision in the high court’s 2008 ruling striking down Washington, D.C.’s handgun ban.

“If … the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia [and] the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee – it does not assure the existence of a ‘citizens’ militia’ as a safeguard against tyranny,” Justice Scalia wrote.

Scalia drew a distinction between government-sanctioned militiamen and a broader “people’s militia,” which he said was the concern of the founding generation.

These sentences have attracted significant interest and speculation from both sides of the gun rights debate.

Schreiber denounces what he calls “insurrectionist” arguments. “At no time has the Second Amendment been understood to protect a personal or private right of insurrection,” he wrote.

Schmutter cited history to support his contention that individual possession of arms is essential to preventing usurpation by the state.

Lessons from history
“During the 20th Century, more than 70 million people, after first being disarmed, were slaughtered by their own governments,” he wrote. “This pattern appeared in Ottoman Turkey (1915-1917), the Soviet Union (1929-1945), Nazi Germany and occupied Europe (1933-1945), Nationalist China (1927-1949), Communist China (1949-1952, 1957-1960, and 1966-1970, Guatemala (1960-1981), Uganda (1971-1979), Cambodia (1975-1979), and Rwanda (1994) just to name a few.”

He added: “The Second Amendment was created as the final barricade against the unthinkable – the day when the rest of our Constitutional safeguards have failed us and we stand exposed to the brutal reality that so many in history have understood only too late.”

The Anti-Defamation League approached the issue from a different perspective. In a friend of the court brief the organization worried that expansive gun rights might feed into what it said was a pervasive culture of guns and violence among extremists in the US.

What role for government control?
“It is imperative that nothing said in the decision of this case threaten the ability of federal, state, and local governments to address the daunting ‘on the ground’ challenges posed by trying to keep guns out of the hands of extremists, terrorists, and hate criminals,” wrote Leonard Niehoff in the Anti-Defamation League’s brief.

In a dissent in a 2003 gun case, Appeals Court Judge Alex Kosinski laid out his views on the Second Amendment and tyranny. “The simple truth – born of experience – is that tyranny thrives best where government need not fear the wrath of an armed people,” he wrote.

“If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars,” Judge Kosinski said.

“The Second Amendment is a doomsday provision,” he added. “One designed for those exceptionally rare circumstances where all other rights have failed – where government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Rarick on March 09, 2010, 05:56:29 AM
A 6 part answer: (
Title: POTH Op Ed on Filibusters
Post by: Crafty_Dog on March 10, 2010, 09:53:50 AM
I have no opinion on this, but post it in search of Truth:


A One-Track Senate Recommend

Published: March 9, 2010

THE Senate is badly gummed up. Major policy initiatives — health care reform and financial regulation, to name but two — are stalled in endless negotiations. There’s a big reason for this torpor: the filibuster. But there’s a solution: the filibuster. Don’t be confused. The two aren’t the same.

During the 1960s, the Senate was frozen by lengthy filibusters over civil rights legislation. When, in the mid-’70s, that tactic once again threatened to bring the Senate to a standstill, Robert Byrd, the West Virginia Democrat who was the majority whip, invented a dual-track system. This change in practice allowed the majority leader — with the unanimous consent of the Senate or the approval of the minority leader — to set aside whatever was being debated on the Senate floor and move immediately to another item on the agenda.

The result of tracking? No more marathon debate sessions that shut down the Senate. While one bill is being “filibustered,” business can continue on others.

Today a “filibuster” consists of merely telling the leadership that 41 senators won’t vote for a bill. Worse, any single senator can put a “hold” on anything, indefinitely, for any reason. Not only has it become easier to “filibuster,” but tracking means there are far fewer consequences when the minority party or even one willful member of Congress does so, because the Senate can carry on with other things.

Tracking allowed Republican Senator Richard Shelby of Alabama to stop 70 administration nominees while pursuing earmarks for his home state. It permitted the Senate to conduct other business, like confirming a circuit-court judge, during the recent hold by Jim Bunning, Republican of Kentucky, on the unemployment benefit extension. During the “filibuster” of the Senate health care bill, it cleared the way for months of other votes.

Because dual-tracking is a Senate practice, not a formal rule, the majority leader, Harry Reid, could end tracking at any time. By doing so, the Democrats would transform the filibuster and recover their opportunity to govern effectively.

To pull this off, the Democrats need to take three steps: First, they should announce the order in which they will take up their legislative agenda. Next, they should declare that they will no longer be using dual tracking, so that the Senate will hear just one issue at a time. Finally, Democrats should require those who want to filibuster legislation or appointments to actually do so, by holding the floor, talking the issue to death and bringing everything to a halt.

The new-school filibuster would preserve minority rights in the Senate, while imposing significant costs on obstructionist members, changing the calculus that causes today’s logjam. Stuck on the Senate floor, filibustering senators couldn’t meet with lobbyists or attend campaign fund-raising events; they couldn’t do much of anything, really, until their filibuster ended.

Getting rid of dual-tracking would require the minority to make careful choices about what to obstruct, and when to obstruct it. As Senator Bunning’s unsuccessful solo stand against jobless benefits showed, even Republicans have limited tolerance when it comes to stalling legislation for reasons that lack popular support.

After all, filibusters historically broke when public opinion went against the Senate minority. If the Democratic leadership eliminated the dual-track system, serial, single-issue filibusters would give us an opportunity to see where the country actually stands on issues like health care reform and financial regulation — and where the Senate should stand.

By consistently blocking legislation, Republican have made great political gains over the last year. But in a Senate without dual-tracking, Democrats would be able to simply and repeatedly remind the American people that after endless debate there always comes time for a vote. Win or lose, that is how things work in a democracy.

Barry Friedman, a vice dean at New York University School of Law, is the author of the “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.” Andrew D. Martin is the chairman of the political science department and a professor of law at Washington University in St. Louis.
Title: 5th State asserts gun rights from Feds
Post by: Crafty_Dog on March 17, 2010, 06:14:03 AM
Forwarded to me.  The source "worldnetdaily" is not necessarily a reliable one IMHO, but the subject matter is interesting:

5th state exempts guns. Is Washington noticing?
'I think they're going to let it ride, hoping some judge throws out case'

Posted: March 15, 2010
9:11 pm Eastern

By Bob Unruh
© 2010 WorldNetDaily
A fifth state – South Dakota – has decided that guns made, sold and used within its borders no longer are subject to the whims of the federal government through its rule-making arm in the Bureau of Alcohol, Tobacco and Firearms, and two supporters of the growing groundswell say they hope Washington soon will be taking note.
South Dakota Gov. Mike Rounds has signed into law his state's version of a Firearms Freedom Act that first was launched in Montana. It already is law there, in Tennessee, Utah and Wyoming, which took the unusual step of specifying criminal penalties – including both fines and jail time – for federal agents attempting to enforce a federal law on a "personal firearm" in the Cowboy State.
According to a report in the Dakota Voice, the new South Dakota law addresses the "rights of states which have been carelessly trampled by the federal government for decades."
"As the federal government has radically overstepped is constitutional limitations in the past year or so, an explosion of states have begun re-asserting their rights not only with regard to firearms, but also in shielding themselves against government health care, cap and trade global warming taxes, and more," the report said.
(Story continues below)


South Dakota's law specifically notes "any firearm, firearm accessory, or ammunition that is manufactured commercially or privately in South Dakota and that remains within the borders of South Dakota is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce."
The provisions are nearly a mirror of the original law penned in Montana as well as those adopted in subsequent decisions by Tennessee, Utah and Wyoming.
Gary Marbut of the Montana Shooting Sports Association spearheaded the Montana law and now describes himself as a sort of "godfather" to the national campaign.
He told WND the issue is not only about guns but about states' rights and the constant overreaching by federal agencies and Washington to impose their requirements on in-state activities.
Here are answers to all your questions about guns, ammunition and accessories.
He said he's pleased South Dakota has become No. 5, and noted Alaska, Idaho and Oklahoma all have legislation that is approaching the stage of being presented to a governor to be made into law.
The Firearms Freedom Act website also reveals that other states either with pending legislation or pending plans include Alabama, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, Washington and West Virginia.

Map showing 5 states adopting gun exemptions (in green)

Marbut said Washington appears to be reacting the same way it did when states legalized marijuana or rejected the REAL ID national plan: by ignoring it.
"Ultimately we hope there will be lawsuits in other federal circuits, because there are two things that predispose the U.S. Supreme Court to take a case: the national scope of the issue and differing appellate decisions," he told WND.
Michael Boldin of the Tenth Amendment Center said Washington likely is not anxious for a confrontation.
"I think they're going to let it ride, hoping some judge throws out the case," he said today.
"When they really start paying attention is when people actually start following the [state] firearms laws," he said.
WND reported earlier when Wyoming joined the states with self-declared exemptions from federal gun regulation.
But when Democratic Gov. Dave Freudenthal signed his state's bill into law, it included penalties for any agent of the U.S. who "enforces or attempts to enforce" federal gun rules on a "personal firearm" in Wyoming including up to two years in prison and up to $2,000 in fines.
The bellwether likely is to be a lawsuit pending over the Montana law, which was the first to go into effect.
As WND reported, the action was filed by the Second Amendment Foundation and the Montana Shooting Sports Association in U.S. District Court in Missoula, Mont., to validate the principles and terms of the Montana Firearms Freedom Act, which took effect Oct. 3, 2009.
Marbut argues that the federal government was created by the states to serve the states and the people, and it is time for the states to begin drawing boundaries for the federal government and its agencies.
The government's filing in the case demands its dismissal, citing a lacking of "standing" for the plaintiffs and the court's lack of "jurisdiction," as well as the Constitution's Commerce clause. The government filing argues, "The Supreme Court and Ninth Circuit have repeatedly held that even purely intrastate activities, such as those the MFFA purports to exempt from federal law, do affect interstate commerce and thus are within Congress' power to regulate. As a result, even if plaintiffs had standing and jurisdiction existed, plaintiffs' amended complaint fails to state a claim and must be dismissed."
The Commerce Clause, however, can be interpreted to have been amended by the 10th Amendment, which is part of the Bill of Rights, adopted subsequent to the U.S. Constitution, Marbut explains.
His organization said, "The Commerce Clause was amended – by the 10th Amendment. It is a bedrock principle of jurisprudence that for any conflict between provisions of a co-equal body of law, the most recently enacted must be given deference as the most recent expression of the enacting authority. This principle is ancient. Without this principle, laws could not be amended or repealed."
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For example, U.S. courts repeatedly affirmed slavery before it ultimately was rejected.
There's no question that the components of the Bill of Rights have authority: Just look at the First Amendment, Marbut explained.
In an analysis by the Tenth Amendment Center, the gun laws were described as a nullification.
"Laws of the federal government are to be supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are 'unauthoritative, void, and of no force' from the outset," Boldin wrote.
"When a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective,' within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state's citizens," he continued.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Rarick on March 18, 2010, 02:56:17 AM
I have been watching this for a while.   I think this is one way that government is going more local and the citizenry is trying to make its wishes known outside of the special interest lobby power brokering that is going on inside the beltway.   Basically it is saying, "there are parts of the constitution that we will not tolerate you playing fast and lose with".

One of the key parts is where the citizenry holds accountability capabilities.

This is kind of like the talk radio movement during the 80's when the MSM effectively blocked a lot of "conservative" shows/ subject matter from being presented.

There is a certain pressure building due to a sense of a government being out of control, and trying to control access to public forums.  That paradigm was recently used by scientists with global warming, and has been getting used for years by an allegedly "free press" pursuing an agenda as well.   
Title: Constitutional Law: Individual Mandate
Post by: DougMacG on March 22, 2010, 10:12:45 AM
The politics will continue but for now the two branches have spoken on health care, largely forgetting there is a third branch overseeing their work.  For certain there will be a challenge to various aspects, but the big one seems to be the individual mandate.

I have no faith in the chances of 5 justices getting this right, considering Kelo etc., but offer my view of how they should rule.  

The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This power is not delegated elsewhere by the framers so it is therefore a) reserved to the states, as in RomneyCare, and b) requires a new amendment to the constitution in order to delegate this authority.

The reason the proponents did not seek a new amendment is because they do not have 2/3 of the house, 2/3 of the senate and 3/4 of the legislatures on their side.  Not because they didn't think it was necessary; they even said it was a right, which is something you would want enumerated in the constitution if you could.  Same goes for McCain Feingold campaign finance limits.  They knew people weren't going to support, at super-majority levels, a bunch of fine print bullsh*t exceptions inserted into the first amendment that otherwise prohibits congress from limiting political speech.

There is no question in my mind that 4 justices will support the political aspect of the legislation and will pretend to find this power as some unenumerated power into their imaginative readinig of a living and breathing document where it does not exist.  Roberts, Scalia, Thomas and Alito will see this as it is - a violation of the limits on federal powers(MHO).  So the whole bleepin' shooting match regarding the future of our constitutional republic sadly comes down to one spineless 'centrist', Justice Anthony Kennedy, who just 5 years ago concurred on Kelo, taking private homes for other private enterprises in the 'public interest' of allowing a city to collect more property tax on the improvements (that never happened).

Two things have changed since then. 1) two new very sharp and persuasive conservative justices were added to the court in Roberts and Alito, and Kennedy has leaned more conservative since, and 2) Kennedy wrote the corporate campaign finance decision, Citizens United v. Federal Election Commission, that was specifically the target of Obama's public bitch-slap of the court at the State of the Union to a thundering applause on national television.  

Wouldn't it be ironic if that one blatant act of arrogance costs this one term President his only signature accomplishment.  We will see.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: ccp on March 22, 2010, 03:15:37 PM
Hi Doug,
Good to see you back on the board.
Great synopsis of what lies ahead from the Judicial side.
Title: POTH article on legal challenges to Health measure
Post by: Crafty_Dog on March 23, 2010, 06:03:12 AM
Health Measure’s Opponents Plan Legal Challenges
Published: March 22, 2010

Officials in a dozen states who oppose the health care bill say they hope to block it in court by arguing that requiring people to buy health insurance is an unprecedented intrusion by the federal government into people’s lives — the equivalent of going a step beyond simply regulating automobiles to requiring people to buy a car. They add that the bill would rewrite the relationship between federal and state government, and they plan to make their argument in court as soon as the legislation becomes law.

“We plan to file the moment Obama signs the bill,” Greg Abbott, the Texas attorney general, wrote on his Facebook page.

But constitutional scholars suggest that such cases would likely amount to no more than a speed bump for health care legislation. The reason, they say, is that Congress has framed the mandate as a tax, which it has well-established powers to create. And Congress’s sweeping authority to regulate the nation’s economy, they add, has been clear since the 1930s.

“The attack on this bill,” said Jack M. Balkin, a professor of constitutional law at Yale University, “is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”

Florida’s attorney general, Bill McCollum, is leading the effort to block the new bill, saying that it “violates the U.S. Constitution and infringes on each state’s sovereignty.”

Mr. McCollum pledged to fight alongside attorneys general from Alabama, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. Louisiana announced it would join the suit as well, and Virginia, which has passed a law barring government mandates to buy health insurance, has said it will also file suit.

Their arguments in court are likely to focus on the scope of the mandate and the intrusion of the federal government into state affairs, said David B. Rivkin Jr., a lawyer advising Florida who served in the Justice Department under President Ronald Reagan and the first President George Bush.

“This really goes to the heart of the constitutional architecture that the framers have devised” between the government and its citizens, Mr. Rivkin said. He also said that it would represent “a qualitatively unprecedented expansion of federal authority at the expense of the states.”

Whatever people feel about the worthiness of the bill’s goals, “the Constitution does matter,” he added.

Prof. Randy E. Barnett, who teaches constitutional law at Georgetown University Law Center and has been critical of the bill, said a constitutional challenge to the individual requirement to purchase insurance is a “a serious argument that might have success.”

Still, Professor Barnett was careful not to predict that the opponents of the bill would block the legislation completely. He said that even if a court were to strike down the requirement to buy insurance, such a ruling would still be likely to leave other elements of the law in place. Professor Balkin of Yale said the mandate did not run afoul of the Constitution because Congress had carefully structured it as a tax — and taxes are fully within its power.

“People have to pay taxes all the time,” he said. “This is not new.”

Courts generally defer to Congress’s taxation decisions and definitions so long as they constitute a “genuine revenue-raising device,” Professor Balkin said, and so the health insurance mandate is likely to pass muster.

The broad extent of the government’s power to regulate interstate commerce has been recognized since the Roosevelt administration. In fact, courts have backed Congress’s ability to regulate under the Commerce Clause of the Constitution, even when the issues might not seem, at first blush, to even involve interstate commerce at all. That is why Roscoe Filburn, a small farmer in Ohio, had to destroy wheat that exceeded production quotas in a 1942 case, even though he was growing the wheat for his own use and had no intention to sell it.  And in 2005, the Supreme Court ruled that Congress could prohibit medical marijuana, despite some state laws that allow it. The people who had filed suit argued that they had not bought the marijuana, but the Supreme Court said the Commerce Clause still applied.

“In both cases, the Supreme Court said the cumulative effect of your attempt not to participate in the market has an effect on markets — and we can regulate it,” Professor Balkin said.

Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law, said the argument that people should have the right not to buy health care was “rhetorically appealing” because of its paean to personal freedom. But “individual freedom not to purchase health care, I think, has no basis in Constitutional law.”

In fact, Professor Chemerinsky added, “there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”

Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.

“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky said, “I think this will be upheld.”
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on March 23, 2010, 08:38:18 AM
CCP,  Very much appreciate the kind words.  I've kept up reading in my posting absence and always enjoy your insights as well.  Crafty's post certainly warns us not to have false optimism, even with the Pravda disclaimer and knowing that there are plenty of 'experts' like the Yale Professor to argue for the other side.  Yet in justification he points to rulings where feds stopped a farmer from growing wheat (or pot) on his own land for his own consumption, while I pointed to where they found the constitution could prohibit the city from entering a private home, but not from bulldozing it!

Like referees in the NFL or in hockey, maybe they sometimes know when the have gone too far in one direction and the next call goes the other way, as with campaign finance restrictions versus freedom of speech.

I really hate the idea and actually going in to read this garbage that these lawmakers never read, but it seems to me these mandates are backed with fines or penalties rather than a tax and the language they used is all about mandate, not choice or taxpayer option. 

Either way, the NY Times got one part right.  They won't strike down the whole deal, only certain provisions, which can be tweaked to conform with the guidelines set by the court, if they still have the votes.

In the meantime I pray for the health of all the justices, 5 in particular.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on March 23, 2010, 09:20:43 AM
Interesting stuff, Doug. I'm hoping that all this fun leads to a revival of a State's Rights effort. Currently there is a lot going on at the state level where both healthcare and second amendment issues are concerned. I'm kinda hoping a lot of this wends its way up through sundry federal courts, finds some measure of unity and common voice, and then either passes SCOTUS muster or so clearly defines just how far we strayed from the framer's intent that folks are motivated to use methods said framers made sure citizens had access to to impose changes on our congressional overlords.
Title: Supremacy Clause
Post by: Crafty_Dog on March 30, 2010, 06:10:12 AM
Who’s Supreme? The Supremacy Clause Smackdown

by Brion McClanahan

When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.

In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.” Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.

Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-à-vis the States.

The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.

The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent…” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union….” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states…” through such language.

Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.

The Convention again broached a federal negative on State law on 8 June 1787. Charles Pinckney, who presented a draft of a constitution shortly after Randolph offered the Virginia Plan, believed a national negative necessary to the security of the Union, and Madison, using imagery from the solar system and equating the sun to the national government, argued that without a national negative, the States “will continually fly out of their proper orbits, and destroy the order and harmony of the political system.” Such symbolism made for a beautiful picture, but it belied reality.

To most of the assembled delegates, the national government was not the center of the political universe and the States retained their sovereignty. Hugh Williamson of North Carolina emphatically stated he “was against giving a power that might restrain the states from regulating their internal police.”

Elbridge Gerry of Massachusetts was against an unlimited negative, and Gunning Bedford of Delaware believed a national negative was simply intended “to strip the small states of their equal right of suffrage.” He asked, “Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views?”

When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote). Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.” Since the negative did not pass, such a definition was unnecessary.

Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.

By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:

    This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].

Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles….If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”

Furthermore, in a foreshadowing of nullification, Iredell argued that, “It appears to me merely a general clause, the amount of which is that, when they [Congress] pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not [emphasis added]. Other ratifying conventions had similar debates, and proponents of the Constitution continually reassured wavering supporters that the Constitution would only be supreme within its delegated authority.

Most bought their assurances, though to staunch opponents, the Constitution still vested too much power in the central authority. The States would lose their sovereignty, they argued, and as a result, these men demanded an amendment to the Constitution that expressly maintained the sovereignty of the States and placed limits on federal power. Even several moderate supporters of the Constitution embraced this idea.

Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.

Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare. Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly. In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”

I guess Mr. Siegel has failed to consider that Idaho bill HO391 was passed by a legitimate legislative body elected by the people of the State. That would make it lawful.

mcclanahan-founding-fathersOf course, this debate ultimately boils down to loose interpretation verses strict construction. Thomas Jefferson had the best line on this issue. When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”

The original intent of both the “supremacy clause” and the Tenth Amendment indicate that Idaho and the other States challenging Obamacare are justified and correct and that the legal profession is either in the tank for the federal government or has not read either the debates of the Constitutional Convention and/or the State ratifying debates. This should make people like Engstrom and Siegel, rather than legitimate State law directed at unconstitutional authority, irrelevant.

Brion McClanahan holds a Ph.D in American history from the University of South Carolina and is the author of The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009).
Title: Good Riddance Justice Stevens!
Post by: DougMacG on April 14, 2010, 08:14:44 AM
This piece by Thomas Sowell covers my view very nicely.  Win or lose it should be good for the Republic to watch new confirmation hearings this summer and have a review of the system we once called limited government.

Good Riddance!
By Thomas Sowell

When Supreme Court Justices retire, there is usually some pious talk about their "service," especially when it has been a long "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.

Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.

The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.

What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.

Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.

Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?

John Paul Stevens is a classic example of what has been wrong with too many Republicans' appointments to the Supreme Court. The biggest argument in favor of nominating him was that he could be confirmed by the Senate without a fight.

Democratic presidents appoint judges who will push their political agenda from the federal bench, even if that requires stretching and twisting the Constitution to reach their goals.

Republicans too often appoint judges whose confirmation will not require a big fight with the Democrats. You can always avoid a fight by surrendering, and a whole wing of the Republican party has long ago mastered the art of preemptive surrender.

The net result has been a whole string of Republican Justices of the Supreme Court carrying out the Democrats' agenda, in disregard of the Constitution. John Paul Stevens has been just one.

There may have been some excuse for President Ford's picking such a man, in order to avoid a fight, at a time when he was an unelected President who came into office in the wake of Richard Nixon's resignation in disgrace after Watergate, creating lasting damage to the public's support of the Republicans.

But there was no such excuse for the elder President Bush to appoint David Souter, much less for President Eisenhower, with back-to-back landslide victories at the polls, to inflict William J. Brennan on the country.

In light of these justices' records, and in view of how long justices remain on the court, nominating such people was close to criminal negligence.

If and when the Republicans return to power in Washington, we can only hope that they remember what got them suddenly and unceremoniously dumped out of power the last time. Basically, it was running as Republicans and then governing as if they were Democrats, running up big deficits, with lots of earmarks and interfering with the market.
But their most lasting damage to the country has been putting people like John Paul Stevens on the Supreme Court.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: ccp on April 14, 2010, 09:08:35 AM
Doug, or other Court followers,
Couldn't it be worse with the replacement?
Obviously the One wants activist judges who interpret the constitution in a way then benefits transfer of power to the "oppressed".

I mean phone one is in office less than two years and he already is appointing two justices.  Ginsberg may die soon so there is likely a third.  Thank God they were all liberal to start with!

Title: Pantomime Oversight
Post by: Body-by-Guinness on April 20, 2010, 07:15:32 PM
The Latest ‘Intelligence Gap’

Posted by Julian Sanchez

Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:

“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”

I want to take claims like these with due gravity, but I can’t anymore.  Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time.  We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires.  Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either.  But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed?  Pull the other one.

That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act.  Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.

As for what the problem might be, I can think of a couple of possibilities off the top of my head.  A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context.  Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.

Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.

These are, of course, blind guesses.  What’s disturbing is how much blind guessing the FISA court itself may be doing.  The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.

We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Rarick on April 21, 2010, 02:51:09 AM
The only intelligence gap is the usuall one.  A bureaucrat more interested in the rumor by the water cooler than checking his full in box.  The FBI had an agent that put the pieces together- the agent was junior and female so it did not go anywhere......... 4 broken buildings later and a retired FBI agent with a couple million taxpayer dolars in the bank and they still haven't solved the real issue.

someone mentioned that agents in the field could have a pretty good idea where their info should go, why not let them directly send it?  You need at least 1 more layer there for cut outs, and deniability, but that layer would still have a much better idea than the guy in the comfy office, and get it where it needs to go way faster.  I wonder how many inside under the roof jobs that would cut?  also it would clear up the accountability issues regarding a government spying on its own citizens "just in Case".
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on April 21, 2010, 05:50:31 AM
In the article CCP posted it said:

"Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires.  Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either."

This "traveling through US wires" thing is something I have read and believed for several years.  Its been a lie?!?  :x :x :x  Does anyone have anything more on this?!?

On the subject of the Constitution being "a living document", this seems pertinent to me:

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson, letter to Wilson Nicholas, 1803

Title: Insurance mandate in peril
Post by: Crafty_Dog on April 29, 2010, 04:11:45 PM

Hat tip to BBG

The Insurance Mandate in Peril
First Congress said it was a regulation of commerce. Now it's supposed to be a tax. Neither claim will survive Supreme Court scrutiny.

A"tell" in poker is a subtle but detectable change in a player's behavior or demeanor that reveals clues about the player's assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month's health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate's defenders changed the argument—now claiming constitutional authority under Congress's power to tax.

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate's constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an "individual responsibility requirement" that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: "The individual responsibility requirement provided for in this section," the law says, ". . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2)." Paragraph (2) then begins: "The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased."

In this way, the statute speciously tries to convert inactivity into the "activity" of making a "decision." By this reasoning, your "decision" not to take a job, not to sell your house, or not to buy a Chevrolet is an "activity that is commercial and economic in nature" that can be mandated by Congress.

It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic "activity" that substantially affects interstate commerce. But the Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.

Since this Commerce Clause language was first proposed in the Senate last December, Democratic legislators and law professors alike breezily dismissed any constitutional objections as preposterous. After the bill was enacted, critics branded lawsuits by state attorneys general challenging the insurance mandate as frivolous. Yet, unable to produce a single example of Congress using its commerce power this way, the defenders of the personal mandate began to shift grounds.

On March 21, the same day the House approved the Senate version of the legislation, the staff of the Joint Committee on Taxation released a 157-page "technical explanation" of the bill. The word "commerce" appeared nowhere. Instead, the personal mandate is dubbed an "Excise Tax on Individuals Without Essential Health Benefits Coverage." But while the enacted bill does impose excise taxes on "high cost," employer-sponsored insurance plans and "indoor tanning services," the statute never describes the regulatory "penalty" it imposes for violating the mandate as an "excise tax." It is expressly called a "penalty."

This shift won't work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.

In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, "there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment."

Although the Court has never repudiated this principle, the Court now interprets the commerce power far more broadly. Thus Congress may regulate or prohibit intrastate economic activity directly without invoking its taxation power. Yet precisely because a mandate to engage in economic activity has never been upheld by the Court, the tax power is once again being used to escape constitutional limits on Congress's regulatory power.

Supporters of the mandate cite U.S. v. Kahriger (1953), where the Court upheld a punitive tax on gambling by saying that "nless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power." Yet the Court in Kahriger also cited Bailey with approval. The key to understanding Kahriger is the proposition the Court there rejected: "it is said that Congress, under the pretense of exercising its power to tax has attempted to penalize illegal intrastate gambling through the regulatory features of the Act" (emphasis added).

In other words, the Court in Kahriger declined to look behind Congress's assertion that it was exercising its tax power to see whether a measure was really a regulatory penalty. As the Court said in Sonzinsky v. U.S. (1937), "nquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts." But this principle cuts both ways. Neither will the Court look behind Congress's inadequate assertion of its commerce power to speculate as to whether a measure was "really" a tax. The Court will read the cards as Congress dealt them.

Congress simply did not enact the personal insurance mandate pursuant to its tax powers. To the contrary, the statute expressly says the mandate "regulates activity that is commercial and economic in nature." It never mentions the tax power and none of its eight findings mention raising any revenue with the penalty.

Moreover, while inserting the mandate into the Internal Revenue Code, Congress then expressly severed the penalty from the normal enforcement mechanisms of the tax code. The failure to pay the penalty "shall not be subject to any criminal prosecution or penalty with respect to such failure." Nor shall the IRS "file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section," or "levy on any such property with respect to such failure."

In short, the "penalty" is explicitly justified as a penalty to enforce a regulation of economic activity and not as a tax. There is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress.

So defenders of the mandate are making yet another unprecedented claim. Never before has the Court looked behind Congress's unconstitutional assertion of its commerce power to see if a measure could have been justified as a tax. For that matter, never before has a "tax" penalty been used to mandate, rather than discourage or prohibit, economic activity.

Are there now five justices willing to expand the commerce and tax powers of Congress where they have never gone before? Will the Court empower Congress to mandate any activity on the theory that a "decision" not to act somehow affects interstate commerce? Will the Court accept that Congress has the power to mandate any activity so long as it is included in the Internal Revenue Code and the IRS does the enforcing?

Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.

Mr. Barnett is a professor of constitutional law at Georgetown and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).
Title: Jefferson
Post by: Crafty_Dog on May 03, 2010, 06:32:00 AM
"They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.... Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect." --Thomas Jefferson, Opinion on National Bank, 1791

"The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption -- a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible." --Thomas Jefferson, letter to Mesrs. Eddy, Russel, Thurber, Wheaton and Smith, 1801
Title: Madison
Post by: Crafty_Dog on May 04, 2010, 03:46:36 AM
"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution." --James Madison, letter to Henry Lee, 1824
Title: Volokh on Kagan
Post by: Body-by-Guinness on May 11, 2010, 06:30:00 PM
Elena Kagan as Scholar
Eugene Volokh • May 10, 2010 3:47 pm

As scholar, Elena Kagan worked in two main fields, First Amendment law and (more or less) administrative law. Since the first of those fields is one in which I also work, I decided to reread those articles, and — since some people have raised questions about Kagan’s qualities as a scholar — look more broadly at her scholarship.

1. Let me begin with some objective factors, rather than my own evaluation of Kagan’s scholarship. As this excellent SCOTUSblog post chronicles, Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).

Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.

Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.

Chevron’s Nondelegation Doctrine has been cited 75 times, a very high number for an article’s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review’s excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).

And while some articles might be heavily cited because they fit with academic ideological fashions, I don’t think these would qualify. As I understand it, Kagan’s administrative law work is consistent with a strong executive model, and the modern intellectual fashion (especially during the Bush era) has been to criticize this model (though the balance of the legal academy on this has not been as lopsided as on some other issues). Likewise, Kagan’s First Amendment scholarship, especially Private Speech, Public Purpose, doesn’t fit with any current fashion among First Amendment scholars; it is not, for instance, distinctively left-wing in its views (the direction in which the constitutional law academy famously trends these days). That it has been heavily cited suggests a substantive judgment about its technical merit and originality, and not just ideological sympathy.

So Kagan, it seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn’t written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.

2. On then to my own evaluation of the First Amendment articles: I think they’re excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan’s Private Speech, Public Purpose article, see, e.g., PDF pp. 8–9). But I like them a lot.

The articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.

As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. (I’m a big believer in formalism in the sense of a preference for rules over standards; but I share many people’s disapproval of formalistic arguments in the fashioning of rules, when those arguments ignore real-world distinctions and effects, and obscure the important policy questions rather than revealing them.) This is legal scholarship as it should be, and as it too rarely is.

3. But how would Elena Kagan likely actually vote in First Amendment cases? It’s hard to tell for sure.

This is partly because her work is in large measure structural and theoretical, rather than focusing on specific constitutional controversies. And it is partly because even her articles that focus on such specific controversies, such as over so-called “hate speech” and pornography, are often more analytical (here’s how we should understand the law, and here are the pluses and minuses of various approaches) than prescriptive (here’s the rule courts should adopt). That’s a fine trait in an article — the analytical components are generally more useful to readers than the prescriptive components. But it does make it hard to predict just how the author would decide cases as a Supreme Court Justice.

Still, here’s my rough sense of the matter:

a. Kagan’s First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it. I can’t tell for sure whether this flows from a judgment about what’s more useful scholarship, from a largely precedent-respecting temperament, or from agreement with the underlying free speech caselaw. But my guess is that it at least in part reflects a general comfort with the current precedents, and a lack of desire to shift them much.

b. On so-called “hate speech” and pornography, the two First Amendment topics on which Kagan has most explicitly written, I likewise see little interest in moving the law much. Kagan seems to find much that’s sensible about R.A.V. v. City of St. Paul — which held that even within the unprotected category of “fighting words,” the government may not single out words based on their racially, religiously, etc. themed message. And to the extent she’s skeptical about that decision, it sounds like most that she would tolerate is a restriction within this unprotected category of fighting words: I don’t think she would endorse restrictions on allegedly racist or otherwise bigoted speech outside this traditionally unprotected category.

Likewise, while she might tolerate some restrictions on pornography — probably limited to pornography that depicts violent sex — it seems likely that she won’t go much beyond (and likely not at all beyond) restrictions on pornography that already fits within the “obscenity” exception. I am no fan of the obscenity exception, chiefly because of its nearly lawless vagueness. But while it sounds like Kagan probably wouldn’t vote to get rid of the exception, or even go so far as Stevens to argue that obscenity could only be punished through civil enforcement and not the criminal law, it also sounds like Kagan probably wouldn’t materially expand the exception, or create similar exceptions to join it.

c. What about the matters on which Justices on the left wing of the Court have generally taken a relatively speech-restrictive view — campaign finance speech restrictions, and restrictions on religious speech in generally available government subsidy programs (see, e.g., Rosenberger v. University of Virginia)? (I do not include within this category so-called “hate speech” or pornography, even violent and allegedly misogynistic pornography, since the Justices on the left wing of the Court have not generally taken a relatively speech-restrictive view as to these.)

Here, Kagan’s writings are relatively opaque. Some passages in her Private Speech, Public Purpose article suggests that she’s at least sympathetic with Buckley v. Valeo’s holding that restrictions on individual expenditures related to campaigns are unconstitutional. If that’s so, then she would probably take a more speech-protective view than Justices Stevens, Ginsburg, and probably Breyer (we don’t know much about Justice Sotomayor’s views on the question). But it’s hard to be even close to certain of this.

My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.
Title: Federalizing Unintended Crime
Post by: Body-by-Guinness on May 19, 2010, 06:25:42 AM
Long, comprehensive examination of a federal trend to criminalize laws and regulations, generally quite obscure ones, without intending to. Piece states that there are currently almost 4500 federal laws that don't require intent to violate, and an estimated 10,000 federal regulations. Link to the full report here:

Executive summary follows:

For centuries, “guilty mind,” or mens rea, requirements restricted criminal punishment to those who were truly blameworthy and gave individuals fair notice of the law. No person should be convicted of a crime without the government having proved that he acted with a guilty mind—that is, that he intended to violate a law or knew that his conduct was unlawful or sufficiently wrongful so as to put him on notice of possible criminal liability. In a sharp break with this tradition, the recent proliferation of federal criminal laws has produced scores of criminal offenses that lack adequate mens rea requirements and are vague in defining the conduct that they criminalize.

The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly under- took an unprecedented look at the federal legislative process for all studied non-violent criminal offenses introduced in the 109th Congress in 2005 and 2006. This study revealed that offenses with inadequate mens rea requirements are ubiquitous at all stages of the legislative process: Over 57 percent of the of- fenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation of Congress’s authority to make criminal law to unaccountable regulators.

According to several scholars and legal researchers, Congress is criminalizing everyday conduct at a reckless pace. This study provides further evidence in support of that finding. Members of the 109th Congress proposed 446 non-violent criminal offenses and Congress enacted 36 of them. These totals do not include the many offenses concerning firearms, possession or trafficking of drugs or pornography, immigration violations, or intentional violence. The sheer number of criminal offenses proposed dem- onstrates why so many of them were poorly drafted and never subjected to adequate deliberation and oversight.

Even more troubling is the study’s finding that many of the criminal offenses Congress is enacting are fundamentally flawed. Not only do a majority of enacted offenses fail to protect the innocent with adequate mens rea requirements, many of them are so vague, far-reaching, and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.
These failings appear to be related to the reckless pace of criminalization. Congress is awash with crim- inal legislation, and the House and Senate Judiciary Committees lack the time and opportunity to review each criminal offense and correct weak mens rea requirements. Over half (52 percent) of the offenses in the study were never referred to either judiciary committee. This is despite these committees’ special expertise in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law.

One encouraging finding is that oversight by the House Judiciary Committee does improve the qual- ity of mens rea requirements. Oversight includes marking up a bill or reporting it out of committee for consideration by the full House of Representatives. Based upon this analysis, and upon the specific criminal law jurisdiction and expertise of the House and Senate Judiciary Committees, automatic referral of all bills adding or modifying criminal offenses to these two committees is likely to improve mens rea requirements. More importantly, automatic referral could stem the tide of criminalization by forcing Congress to adopt a measured and prioritized approach to criminal lawmaking. By neglecting the expertise of the judiciary committees, Congress endangers civil liberties.

The study also revealed that Congress frequently delegates its criminal lawmaking authority to other bodies, typically executive branch agencies. Delegation empowers unelected regulators to decide what conduct will be punished criminally, rather than requiring Congress to make that determination itself. This “regulatory criminalization” significantly increases the scope and complexity of federal criminal law, pre- vents systematic congressional oversight of the criminal law, and lacks the public accountability provided by the normal legislative process.

To begin to solve the problems identified in the study, this report offers five specific recommendations for reform. Congress should:

1. Enact default rules of interpretation to ensure that mens rea requirements are adequate to protect against unjust conviction.

Congress should enact statutory law that directs federal courts to grant a criminal defendant the ben- efit of the doubt when Congress has failed to adequately and clearly define the mens rea requirements for criminal offenses and penalties. First, this reform would address the unintentional omission of mens rea terminology by directing federal courts to read a protective, default mens rea requirement into any criminal offense that lacks one. Second, it would direct courts to apply any introductory or blanket mens rea terms in a criminal offense to each element of the offense. In this way, it would improve the mens rea protections throughout federal criminal law, provide needed clarity, force Congress to give careful consideration to mens rea requirements when adding or modifying criminal offenses, and help ensure that fewer individuals are unjustly prosecuted and punished.

2. Codify the common-law rule of lenity, which grants defendants the benefit of doubt when Congress fails to legislate clearly.

The rule of lenity directs a court, when construing an ambiguous criminal law, to resolve the ambiguity in favor of the defendant. In a recent U.S. Supreme Court decision, United States v. Santos, Justice Antonin Scalia explained that this “venerable rule vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.” Giving the benefit of the doubt to the defendant is consistent with the traditional rules that all defendants are presumed innocent and that the government bears the burden of proving every element of a crime beyond a reasonable doubt. Codifying this venerable common-law rule would serve the rights of all defendants at every stage of the criminal process. This reform would also protect Congress’s lawmaking authority because it would restrict the ability of federal courts to legislate from the bench and reduce the frequency with which those courts must speak because Congress has failed to legislate clearly.

3. Require judiciary committee oversight of every bill that includes criminal offenses or penalties.

Congressional rules should require every bill that would add or modify criminal offenses or penalties to be subject to automatic referral to the relevant judiciary committee. A “sequential” referral requirement would give the House or Senate Judiciary Committee exclusive control over a bill until it reports the bill out or the time limit for its consideration expires, and only at that point could the bill move to another committee. The judiciary committees have special expertise in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law. While automatic referral may not produce stronger, more protective mens rea requirements, it should result in clearer, more specific, and higher quality criminal offenses. More importantly, this rule could help stem the tide of criminalization by forcing Congress to adopt a measured and prioritized approach to criminal lawmaking. Further, it would increase congressional accountability for new criminalization and ultimately reduce overcriminalization.
4. Require detailed written justification for and analysis of all new federal criminalization.
This reform would require the federal government to produce a standard public report assessing the purported justification, costs, and benefits of all new criminalization. This report must include:

•   A description of the problem that the criminal offense or penalty is intended to redress, includ- ing an account of the perceived gaps in existing law, the wrongful conduct that is currently unpunished or under-punished, and any specific cases or concerns motivating the legislation;
•   A direct statement of the express constitutional authority under which the federal government purports to act;
•   An analysis of whether the criminal offenses or penalties are consistent with constitutional and prudential considerations of federalism;
•   A discussion of any overlap between the conduct to be criminalized and conduct already crimi- nalized by existing federal and state law;
•   A comparison of the new law’s penalties with the penalties under existing federal and state laws for comparable conduct;
•   A summary of the impact on the federal budget and federal resources, including the judiciary, of enforcing the new offense and penalties to the degree required to solve the problem that the new criminalization purports to address;
• A review of the resources that federal public defenders have available and need in order to adequately defend indigent defendants charged under the new law; and
•   An explanation of how the mens rea requirement of each criminal offense should be interpreted and applied to each element of the offense.
This reform would also require Congress to collect information on regulatory criminalization, includ- ing an enumeration of all new criminal offenses and penalties that federal agencies have added to federal regulations, as well as the specific statutory authority supporting these regulations.

Mandatory reporting would increase accountability by requiring the federal government to perform basic analysis of the grounds and justification for all new and modified criminal offenses and penalties.

5. Draft every criminal offense with clarity and precision.

One overarching reform recommendation is a slower, more focused, and deliberative approach to the creation and modification of federal criminal offenses. When drafting criminal offenses, Members of Congress should always:
•   Include an adequate mens rea requirement; •   Define both the actus reus (guilty act) and the mens rea (guilty mind) of the offense in specific and
unambiguous terms; •   Provide a clear statement of whether the mens rea requirement applies to all the elements of the
offense or, if not, which mens rea terms apply to which elements of the offense; and •   Avoid delegating criminal lawmaking authority to regulators.
The importance of sound legislative drafting cannot be overstated, for it is the drafting of a criminal offense that frequently determines whether a person acting without intent to violate the law and lacking knowledge that his conduct was unlawful or sufficiently wrongful to put him on notice of possible criminal liability will endure a life-altering prosecution and conviction—and lose his freedom.

It is equally important that Members of Congress resist the temptation to bypass the arduous task of drafting criminal legislation by delegating it to unelected regulators. It is the legislative branch’s responsibil- ity to ensure that no individual is punished if Congress itself did not devote the time and resources neces- sary to clearly and precisely articulate the law giving rise to that punishment.

These five reforms would help ensure that every proposed criminal offense receives the attention due whenever Congress determines how to focus the greatest power government routinely uses against its own citizens: the criminal law. Coupled with increased public awareness and scrutiny of the criminal offenses Congress enacts, these reforms would strengthen the protections against unjust conviction and prevent the dangerous proliferation of federal criminal law. With their most basic liberties at stake, Americans are entitled to no less.
Title: Three Deadly Weapons
Post by: Freki on May 19, 2010, 01:27:04 PM
Three Deadly Weapons

by Timothy Reeves, Oregon Tenth Amendment Center

Any honest reading of the US Constitution gives the impression that the Federal Government is but a lackey to the states. However, when it comes to the way it has been interpreted (incorrectly), there are three clauses which are widely cited as authority to usurp power which belongs elsewhere. In this article, I intend to delve into these and examine how they are true or false. I also intend to highlight the impact that the abuse/use of these clauses has had.

Commerce Clause

Article I Section8 Clause3 of the Constitution states that Congress has the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This obviously means Congress has the right to regulate how much grain you can grow on your land for your own consumption, right? If you said no it does not (like any other thinking person), you are out of step with the US Supreme Court. This also means that the Congress can force you to purchase health insurance, right? If you said no, you are out of step with the Congress. Surely the Commerce clause means that if a migratory bird (that is hunted in another state) lands on your property, then your property can be seized by the Federal Govt. due to it’s part in interstate commerce right? No?

How about this one; The Federal Government can make gun laws (in direct contravention of the US Constitution) because they are sold over state lines. Obviously the ambiguous verbiage above allows them the authority to ignore the clearly unambiguous verbiage of “shall not be infringed,” right?

Well, there is the Government’s case, now how about the governed? For our case I will focus on some quotes from the founders:

How about that James Madison (the acknowledged father of the Constitution)?

    It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.

So… the way I read James Madison here is that the Commerce clause is to keep the states themselves from interfering with commerce (laying tariffs between states, placing restrictions on imports, etc…). It seems that Madison did not want the Federal Government using the Commerce clause to control… well.. everything.

How about Thomas Jefferson? Here is the quote I found from him-

    “[The commerce clause] does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) … but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.”

Hmmm… I think Thomas Jefferson agreed with me. The Commerce clause was intended only to regulate resale.

In fact, the federalist papers used the term “commerce” dozens of times, and they all amounted to the resale of things by merchants and shippers, not one time did it mean growing of agriculture or manufacturing of products for sale. If this context was examined, then this would be the original intent of the Constitution.

Necessary And Proper Clause

Article I Section8 Clause18 states that Congress has the power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Most school children are taught that this clause was added so that Congress could legislate on issues that would come with new inventions. (My teacher used to say that there were no autos in 1789, so they needed to put this clause in).

Surely this clause means that Congress can make any law they want, right? The problem with this view is that at the end of this clause the Constitution clearly limits the power to making laws necessary to carry out the other laws in the Constitution. In other words, Congress has the power to raise and support a navy, so they have the power to train sailors and commission ships.

These powers are referred to as “incidental powers.” They must be smaller than the power they are used in conjunction with. That is, they may regulate interstate commerce, but may not regulate state governments or laws.

Some examples of “necessary and proper” overreach are:

In 1896, it was ruled that it was legal for the Federal Government to condemn a railroads property to build a national park on the basis that it was necessary to the national defense that the citizens are proud of their country.

Now, I love my country as much as anyone else alive, however, I love the freedoms more than the national park, and this just illustrates what freedoms we do not have. The necessary and proper clause was also used to justify the national bank as necessary to conduct the borrowing and national defense powers of Congress. But lets look at some other input:

Joseph Story (an early Supreme Court Justice) said-

    “The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant.”

This about spells it out. The debate for McCullough Vs. Maryland is another source for quotes from Hamilton, Madison and Jefferson.

General Welfare Clause

To promote or to provide for the general welfare, appears in two places in the US Constitution;

First in the preamble, which is just a listing of reasons and gives no powers whatsoever, and then Article I Section8 Clause 1 where it states:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

Does this clause mean that Congress has no limits except what they believe will advance the “general welfare?” Is it just the Supreme Court which determines the general welfare, but the federal government may do anything that the court does not forbid? This is the primary opinion of the elite and the elected. It has been used to justify welfare, Medicare, Social Security, Medicaid, and a host of freedom-destroying legislation. But what did the founders think of this?

Take James Madison-

    “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

or this one:

    “With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

Or this one from Thomas Jefferson

    “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

In reality, the “General welfare” clause is a qualifier. Congress may only lay taxes for revenue to be used for the general welfare (as opposed to the special welfare) of the states, for example, they may lay taxes to build postal roads, but they may not lay taxes for building postal roads in New Hampshire, to the detriment of the rest of the states. So, ironically, the way that Congress horse-trades favors for votes in Congress makes most legislation unconstitutional.

There’s More

In addition to these gross misconceptions by the Federal Govt., they add the Supremacy clause, which states:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith-standing.”

This is pointed to anytime the Federal Government wants to escape criticism from people saying they have exceeded their authority. However, a careful reading of the passage above makes it clear that only laws in pursuance of the US Constitution are supreme. Anytime the Federal Govt. goes beyond the Constitution, citizens are not bound to obey them.

The preceding examples of intentional misconstruction of the Constitution are examples of our Federal Government out of control. They pit the citizens against each other; they take from the hand of labor to give to the hand of not only the needy, but the banks and corporations as well.

They make people perpetual slaves by addicting them to handouts and then denying them the escape from this perpetual misery by over-regulating prospective employers for these people. They have bogged us down in perpetual wars overseas for over a period of 70 years, ignoring the appropriate method of war-making under the Constitution.

They have criminalized multiple forms of commerce, suspended Habeas corpus in absence of properly declared wars, and they have systematically denied due process rights for the people.

Indeed, this list could go on for pages. Most of these transgressions against the natural rights of man are done in the name of the good intentions (saving people from themselves). These need to end, and our country needs to return to the republican form of government it was founded on. Our states need to resume pushing back at the Federal Government and interposing on our behalf.

Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on May 19, 2010, 02:14:15 PM

That is a very nice article and very practical for citing.  Good find!
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on May 19, 2010, 02:17:44 PM
Although this article is thoughtful and well-informed, I think the better point is to throw out these laws altogether as violations of the First Amendment.

Editor's note: The following article is co-authored by former Federal Election Commissioners Joan Aikens, Lee Ann Elliott, Thomas Josefiak, David Mason, Bradley Smith, Hans A. von Spakovsky, Michael Toner and Darryl R. Wold:

As former commissioners on the Federal Election Commission with almost 75 years of combined experience, we believe that the bill proposed on April 30 by Sen. Chuck Schumer and Rep. Chris Van Hollen to "blunt" the Supreme Court's decision in Citizens United v. FEC is unnecessary, partially duplicative of existing law, and severely burdensome to the right to engage in political speech and advocacy.

Moreover, the Democracy Is Strengthened by Casting Light On Spending in Elections Act, or Disclose Act, abandons the longstanding policy of treating unions and businesses equally, suggesting partisan motives that undermine respect for campaign finance laws.

At least one of us served on the FEC at all times from its inception in 1975 through August 2008. We are well aware of the practical difficulties involved in enforcing the overly complex Federal Election Campaign Act and the problems posed by additional laws that curtail the ability of Americans to participate in the political process.

As we noted in our amicus brief supporting Citizens United, the FEC now has regulations for 33 types of contributions and speech and 71 different types of speakers. Regardless of the abstract merit of the various arguments for and against limits on political contributions and spending, this very complexity raises serious concerns about whether the law can be enforced consistent with the First Amendment.

View Full Image

Martin Kozlowski
 .Those regulatory burdens often fall hardest not on large-scale players in the political world but on spontaneous grass-roots movements, upstart, low-budget campaigns, and unwitting volunteers. Violating the law by engaging in forbidden political speech can land you in a federal prison, a very un-American notion. The Disclose Act exacerbates many of these problems and is a blatant attempt by its sponsors to do indirectly, through excessively onerous regulatory requirements, what the Supreme Court told Congress it cannot do directly—restrict political speech.

Perhaps the most striking thing about the Disclose Act is that, while the Supreme Court overturned limits on spending by both corporations and unions, Disclose seeks to reimpose them only on corporations. The FEC must constantly fight to overcome the perception that the law is merely a partisan tool of dominant political interests. Failure to maintain an evenhanded approach towards unions and corporations threatens public confidence in the integrity of the electoral system.

For example, while the Disclose Act prohibits any corporation with a federal contract of $50,000 or more from making independent expenditures or electioneering communications, no such prohibition applies to unions. This $50,000 trigger is so low it would exclude thousands of corporations from engaging in constitutionally protected political speech, the very core of the First Amendment. Yet public employee unions negotiate directly with the government for benefits many times the value of contracts that would trigger the corporate ban.

This prohibition is supposedly needed to address concerns that government contractors might use the political process to steer contracts their way; but unions have exactly the same conflict of interest. So do other recipients of federal funds, such as nonprofit organizations that receive federal grants and earmarks. Yet there is no ban on their independent political expenditures.

Disclose also bans expenditures on political advocacy by American corporations with 20% or more foreign ownership, but there is no such ban on unions—such as the Service Employees International Union, or the International Brotherhood of Electrical Workers—that have large numbers of foreign members and foreign nationals as directors.

Existing law already prohibits foreign nationals, including corporations headquartered or incorporated outside of the U.S., from participating in any U.S. election. Thus Disclose does not ban foreign speech but speech by American citizen shareholders of U.S. companies that have some element of foreign ownership, even when those foreigners have no control over the decisions made by the Americans who run the company.

For example, companies such as Verizon Wireless, a Delaware corporation headquartered in New Jersey with 83,000 U.S. employees and 91 million U.S. customers, would be silenced because of the British Vodafone's minority ownership in the corporation. But competing telecommunications companies could spend money to influence elections or issues being debated in Congress.

The new disclosure requirements are unnecessary, duplicating information already available to the public or providing information of low value at a significant cost in reduced clarity for grass-roots political speech. In many 30-second ads, Disclose would require no fewer than six statements as to who is paying for the ad (the current law already requires one such statement). These disclaimers would take up as much as half of every ad.

The Disclose Act also creates new disclosure requirements for nonprofit advocacy groups that speak out. These groups already have to disclose their sponsorship, but Disclose requires them to go further and provide the government with a membership list. This infringes on the First Amendment rights of private associations recognized by the Supreme Court in NAACP v. Alabama. Groups can avoid this only by creating a new type of political action committee called a "campaign related activities account."

The result of these overly complex and unnecessary provisions is to force nonprofits to choose between two options that have each been found unconstitutional by the Supreme Court: Either disclose their members to the government or restrict their political spending to the campaign related activities account. This runs contrary to the explicit holding in Citizens United that corporations (and unions) may engage in political speech using their general treasuries.

These requirements will be especially burdensome to small businesses and grass-roots organizations, which typically lack the resources for compliance. So the end effect of all of this "enhanced disclosure" will be to ensure that only large corporations, unions and advocacy groups can make political expenditures—the exact opposite of what the sponsors claim to desire.

While the Disclose Act does include an exemption for major media corporations, it does not include websites or the Internet, which means the government can regulate (and potentially censor) political dialogue on the Web. Additionally, the law would require any business or organization making political expenditures to create and maintain an extensive, highly sophisticated website with advanced search features to track its political activities.

As a result, small businesses, grass-roots organizations, and union locals that maintain only basic websites would be discouraged from making any expenditures for political advocacy, because doing so would require them to spend thousands of dollars to upgrade their websites and purchase software to report information that is already readily available to the public from the FEC. Large companies and unions could probably meet this requirement, so once again the bill benefits large, institutional players over small businesses and grass-roots organizations.

The Disclose Act's abandonment of the historical matching treatment of unions and corporations will cause a substantial portion of the public to doubt the law's fairness and impartiality. It makes election law even more complex, more incomprehensible to ordinary voters, and more open to subjective enforcement by those seeking partisan gain.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on May 23, 2010, 10:07:19 PM

A nice paper on the English Common Law origins of self defense.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on May 24, 2010, 03:48:45 AM
Thank you GM.


I submit the proposition that there is a Consitutional right of self-defense and that it is found in our 9th Amendment.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on May 24, 2010, 04:38:02 AM
Title: Right to self-defense in other legal systems
Post by: G M on May 24, 2010, 05:10:04 AM

Well grounded in many legal systems, not just ours.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on May 24, 2010, 07:30:37 AM

St. Louis University Public Law Review
Gun Control Symposium
vol 18, no. 1, 1999: 13.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.



There is an old adage that says you need to look where you have been to learn where you are going. I believe that it is helpful, and sometimes necessary, to review the issues of the day through a political and historical perspective ¾ looking where we have been. Such a linear approach adds context to a discussion, providing an understanding as to why a sound policy in the past may or may not remain so today. This is especially applicable to the topic of this paper.

Title: a research resource
Post by: Crafty_Dog on May 25, 2010, 08:27:10 AM
This comes recommended to me as a research resource
Title: Executive Power during war time
Post by: Crafty_Dog on May 27, 2010, 06:30:28 AM
a treatise penned by former Justice Benjamin Curtis, who dissented from the majority in the Dred Scott case.  This work is a discussion of the executive power during war time.
Title: A Miranda decision (Sotomayor in dissent)
Post by: Crafty_Dog on June 01, 2010, 12:59:42 PM
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 04, 2010, 08:43:45 AM
Finally, a definitive answer to the question of who the best Supreme Court Associate Justice in history is...

The Greatest Justice

Posted By Erin Miller On June 1, 2010 @ 2:03 pm In 30 Days of Stevens | Comments Disabled

The following essay, one of the final ones for our John Paul Stevens series, was written by Cliff Sloan [1].  Sloan clerked for Justice Stevens during the 1985 Supreme Court Term, and is now a partner at Skadden, Arps, Slate, Meagher, & Flom.

Justice John Paul Stevens is the greatest Justice in Supreme Court history.

I say this, not as hyperbole, but as a reflection of the record he has compiled in his thirty-four and one-half years on the Court.  It is a description warranted by his vast influence over wide swathes of the law, especially those that go to the heart of our constitutional democracy.  His contributions to our jurisprudence are profound, and will endure.  And I say “greatest,” not just “great,” because even our most storied Justices have not compiled a record that rivals or surpasses Justice Stevens’ record.

At the outset, one clarifying point about the frame of reference.  I am excluding Chief Justices from the comparison, for they have powers unavailable to Associate Justices.  This principle, of course, takes John Marshall, Earl Warren, and the other Chiefs out of consideration.

Justice Stevens is the greatest Justice for at least four reasons.  First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals.  He wrote two of the three seminal decisions squarely rejecting the government’s deprivation of legal rights at Guantanamo (Rasul v. Bush and Hamdan v. Rumsfeld), and he was a key member of the five-Justice majority in the third decision of this extraordinary trilogy (Boumediene v. Bush).  His galvanizing role in these cases, reaching back to his experience as a law clerk in the 1947 Term, has been well-chronicled [2].  At other times in our nation’s history, when confronted with claims of wartime authority, the Supreme Court has flinched (as in Korematsu).  Under Justice Stevens’ leadership and opinions, the Court did not flinch.  Instead, it stood powerfully for legal protections, even in a time of great national fear and anxiety. That achievement alone may establish Justice Stevens’ role as the greatest Justice.  But it is far from his only accomplishment.

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.  As Jamal Greene has detailed in these pages [3], Justice Stevens has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution.   This re-orientation is more than a matter of nomenclature or constitutional tidiness.  It has shifted the protection of personal freedom to a more secure and durable foundation.  Not coincidentally, Justice Stevens’ corresponding impact on the protection of liberty has been enormous.  To use a well-known example, Justice Stevens’ dissent in Bowers v. Hardwick, in which he disagreed with the Court’s acceptance of a criminal ban on homosexual conduct and emphasized “the abiding interest in individual liberty,” became the law of the land in Lawrence v. Texas.   Justice Kennedy’s opinion for the Court in Lawrence explicitly adopted Justice Stevens’ dissent as the basis for overruling Bowers: “Justice Stevens’ analysis  . . .  should have been controlling in Bowers and should control here.”  The remarkable seventeen-year arc of that dissent, and the more general re-fashioning of the Court’s framework from a privacy foundation to a liberty foundation, are historic triumphs.  (Full disclosure: as a law clerk, I worked with Justice Stevens on his Bowers v. Hardwick dissent.)

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance.  His memorable dissent in Bush v. Gore excoriated the Court for failing to respect the orderly process of the Florida courts.  In exactly the same vein, just a few years earlier, his often-maligned and misunderstood opinion in Clinton v. Jones stressed the orderly process of the federal courts, and rejected President Clinton’s claim that the Paula Jones lawsuit should be deferred until the expiration of his term.  No other Justice has a comparable record of leadership in vigorously enforcing the rule of law against Presidents in both parties.

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas.   Several examples tell the tale.  His decision in Chevron v. NRDC is, quite simply, the foundation of modern administrative law.  His landmark opinion on free speech and the internet, Reno v. ACLU, is justly known as “the magna carta of cyberspace.”  His 1984 decision in Sony v. Universal City Studios, holding that sale of the videocassette recorder did not constitute copyright infringement, unleashed an era of technological innovation.  His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation.  His opinion in Gonzales v. Raich, upholding Congress’s power to ban state authorization for the medicinal use of marijuana, is a seminal explication of Congress’s powers under the Commerce Clause.  Justice Stevens’ opinions often have been a beacon for state courts, as Rory Little has explained [4] in the context of prosecutorial misconduct. On virtually every legal issue, Justice Stevens’ contribution has been enormous and far-reaching.

The case for Justice Stevens as a great Justice thus seems to me overwhelming.  But the very greatest?  Recognizing inevitable subjectivity in the evaluation, I think that a comparison of Justice Stevens’ record with the record of other contenders for the honor establishes Justice Stevens’ pre-eminence.

To my mind, five other Justices plausibly could be considered for the “greatest” laurel:  Brandeis, Holmes, Brennan, Story, and the first Justice Harlan.  Although all five are great Justices, they fall short of Justice Stevens in their accomplishments and their impact on the Court.

Without a doubt, Louis Brandeis was a giant in the law.  For the purpose of this comparison, it is necessary to consider only his record as a Justice, and not to include his substantial additional contributions as the “People’s Lawyer” before he joined the Court.  Brandeis’ record on the Court is dazzling and impressive.  He was a powerful voice for vigorous First Amendment protections in the years following World War I; he stood strongly for deference to federal and state legislation at the height of the Court’s Lochner era (as in his famous deference to states as laboratories of experimentation in his New State Ice Co. v. Liebmann dissent); and he laid the groundwork for modern Fourth Amendment jurisprudence (in his Olmstead v. United States dissent, later embraced by the Court in Katz v. United States). This is unquestionably a formidable legacy.  But, even giving Brandeis’ record its due, it does not match Justice Stevens’.  Brandeis, for example, has no success comparable to Justice Stevens’ in leading the Court to enforce the rule of law in time of war.  Nor do his opinions dominate in as many areas of the law as Justice Stevens’ opinions.

With his pithy aphorisms and confident turn of mind, the iconic Oliver Wendell Holmes is the most quotable Justice.  But that does not make him the greatest.  His record in opposing the Court’s Lochner jurisprudence, including his famous dissent in Lochner itself (“the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”) is significant and enduring.  So too are his contributions to modern First Amendment doctrine (even while recognizing that  they seem to have resulted, at least to some degree, from Brandeis’ influence after he joined the Court).  But, again, Holmes’ role in leaving an actual body of law and doctrine does not rival or exceed Justice Stevens’.  Moreover, it must be recognized that Justice Holmes, in upholding forced sterilization in Buck v. Bell, wrote one of the most noxious opinions in the Court’s history.  (Holmes: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . .Three generations of imbeciles are enough.”).  It cannot be excused by saying that he was a product of his time.  Greatness in a Justice lies in transcending the mistaken pressures of presumed exigencies, as Justice Holmes did on other occasions. Holmes’ Buck v. Bell opinion is an indelible blot on his record.

The jovial architect of the Warren Court, William J. Brennan, certainly left a far-reaching legacy.  His opinions for the Court in areas such as the First Amendment (New York Times v. Sullivan), the right to vote (Baker v. Carr), congressional power (Katzenbach v. Morgan), and due process protections for recipients of government benefits (Goldberg v. Kelly) comprise an exceptional contribution.  But, impressive as his opinions are in these and other areas, Justice Brennan’s glittering record also has its limits. After the Warren Court, and particularly in his last decade on the Court, he sometimes was marginalized (even while managing occasionally to cobble together majorities). Indeed, according to Joan Biskupic’s biography of Justice Sandra Day O’Connor, Brennan quickly alienated Justice O’Connor with intemperate attacks and a differing style and approach.  Additionally, Brennan’s dominant judicial philosophy perhaps can be viewed as “five-ism” (in light of his famous statement that “you can do anything around here with five votes”).  It is a philosophy less durable than Justice Stevens’ record as the embodiment of the “rule of law” Justice — enforcing the rule of law even-handedly in time of war, against Presidents of both parties, and in a wide variety of contexts.

Joseph Story was one of our most brilliant Justices.  His three-volume Commentaries on the Constitution was the premier constitutional treatise of the nineteenth century.  Story’s output for the Court, however, was relatively sparse, although it did include his opinions in Martin v. Hunter’s Lessee and the Amistad case.  This relative paucity of major opinions was due in large part to the fact that Story served on the Marshall Court for most of his career, and John Marshall wrote almost all of the momentous opinions himself.  Some observers have concluded that Story had a significant impact on Marshall’s opinions.  But Story’s own opinions do not establish a compelling claim to the “greatest Justice” mantle.

Finally, the first Justice Harlan leaves an impressive record, if for no other reason than that he was the lone dissenter in Plessy v. Ferguson.  Harlan had other powerful dissents as well, such as in The Civil Rights Cases and in Lochner.  But he does not leave a body of work that compares to Justice Stevens’ record.

John Paul Stevens will leave the Court as the second oldest Justice to serve and as either the second or third longest-serving Justice (depending on when the Court rises this Term).  Far more important than either of these distinctions, however, is that he will leave the Court as its greatest Associate Justice.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 04, 2010, 12:01:46 PM
"Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom."

What part of LIVE IN ONE'S OWN HOME is not a personal freedom?

Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.  

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..."  - 4th amendment to the U.S. constitution.

In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.

In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred.  Stevens dissented.

"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"

Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.

For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!

Good Riddance!
By Thomas Sowell  April 13, 2010

When Supreme Court Justices retire, there is usually some pious talk about their "service," especially when it has been a long "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.

Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.

The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.

What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.

Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.

Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 04, 2010, 05:24:28 PM
"Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom."

What part of LIVE IN ONE'S OWN HOME is not a personal freedom?

Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.  

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..."  - 4th amendment to the U.S. constitution.

In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.

In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred.  Stevens dissented.

"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"

Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.

For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!

     My comment was meant to be tongue in cheek.  My apologies for not making that clear.  I do not think, however, the JPS is due as much ire as Sowell sends his way.  Kelo was wrongly decided, in my opinion, but the matter was largely addressed at the state level.  Moreover, the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest.  ( 

     The Bill of Rights exists, as you and Sowell correctly note, as a check on the government.  A speedy trial is among those rights, and since the Framers had just come out of a war, I feel prety confident they knew what they were doing by taking steps to ensure that right. 

     The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments.  The liberals became state rights advocates and the conservatives were concerned about the individual right to vote.  Of course, the Constitution also sends the outcome of the election, in the event that no one wins a majority of the electoral votes, to the House. 

Thank you for your reply.  I liked your discussion. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on June 04, 2010, 07:53:03 PM
"The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments.  The liberals became state rights advocates and the conservatives were concerned about the individual right to vote."

My Constitutional law prof at Columbia was Ruth Bader Gingsberg and I will vouch for this.  I remember disagreeing with her over National League of Cities v. Usery.  Bush v. Gore was the first time in her life she ever gave a rat's tail about States' Rights especially with regard to voting rights!

I followed Bush v. Gore QUITE closely.  I read the statute in question.  I watched the oral arguments in front of the Fl Supreme Court.  I read serious legal analysis.  In my opinion, the greatest lack of intellectual integrity was shown by the FL Supremes and IMO the case was decided correctly on the merits by the US Supremes.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 04, 2010, 11:04:37 PM
Thanks Crafty for followup on Bush v. Gore.  Thanks and welcome to bigdog!

"My comment was meant to be tongue in cheek...  Kelo was wrongly decided..."

Whew!   I'm usually on the other side of that with people not getting my humor.  5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well.  I hope my strong reaction came across as civil. Kelo is personal for me.  I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis.  My current home of 24 years is extremely vulnerable to the Kelo rule as well.  Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation".  If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it. 

"the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest"

You are correct on the first part, the issue was the takings portion of the 5th.  I am just saying that the restrictions in the 4th on the limits of even entering the property make the stretched interpretation of the 5th, going from public use to private use, absurd.

Sowell's central point rings true to me, that public use as the justification does not round down to calling it a public purpose if the city council decides to have someone other than you build for private use on your legally purchased site.  And that having the municipality determine the worthiness of the purpose defeats the purpose of limiting their power.  To me the private use takings mock the meaning of the whole constitution and the process of interpreting it.  You put it nicely: "wrongly decided".  An understatement I think, but those too are strong words.  Too many wrong decisions about limits of government power and those limits as we knew them become mere memories IMHO.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on June 04, 2010, 11:14:31 PM

I am delighted to have Big Dog here with us.  Agree or disagree I think we will find him to be a gracious, thoughtful and well-informed member of our conversations.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 05, 2010, 04:12:07 AM
Thanks Crafty for followup on Bush v. Gore.  Thanks and welcome to bigdog!

"My comment was meant to be tongue in cheek...  Kelo was wrongly decided..."

Whew!   I'm usually on the other side of that with people not getting my humor.  5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well.  I hope my strong reaction came across as civil. Kelo is personal for me.  I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis.  My current home of 24 years is extremely vulnerable to the Kelo rule as well.  Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation".  If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it. 

Thank you for the welcome, DogMacG.  (And thank you, Guro Crafty, for the nice introduction.)  I find Kelo interesting on many levels, not the least of which is the takings clause was the section of the BoR incorporated to the states.  Talk about stepping away from history!
Title: The 14th wrt citizenship
Post by: Crafty_Dog on June 11, 2010, 11:01:03 PM
Fascinating discussion in the Immigration thread on P&R at the bottom of
Title: Judicial Activism, Not, I
Post by: Body-by-Guinness on June 16, 2010, 05:39:24 PM
The Liberal Mythology of an “Activist” Court: Citizens United and Ledbetter
Published on June 15, 2010 by Robert Alt and Hans von Spakovsky
Abstract: Liberals are currently engaged in a concerted effort to redefine judicial activism. Rather than accepting the true definition of judicial activism—when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution—liberals now apply the term anytime a statute is struck down or when a court delivers an unfavorable decision. This new tactic is on full display in the Left’s response to two major Supreme Court cases: Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co. Yet, the facts of these cases and an examination of the legal analysis applied by the justices in their majority opinions show that there is no merit to any of these claims. Such cynical and derisive attacks are unfair to the justices who participated in these decisions and injure the public’s faith and confidence in the judicial system.
Judicial activism—real judicial activism—occurs when judges write subjective policy preferences into their legal decisions rather than apply the Constitution according to its original meaning or statutory law based on its plain text. Judicial activism may be either liberal or conservative; it is not a function of outcomes, but one of interpretation. Judicial activism does not necessarily involve striking down laws, but may occur when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution.
Dissatisfied with this accepted definition, liberals have engaged in a concerted effort to redefine judicial activism downward. Under one such formulation, judicial activism occurs anytime that a statute is struck down.[1] In another popular version, judicial activism is all but meaningless—a term of derision that means little more than “I don’t like the policy outcome of this decision.” Both definitions of judicial activism are incorrect, and both are on full display in the debate over two recent Supreme Court decisions: Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co.[2] According to liberal critics, the Citizens United decision is “the logical expression of an activist pro-corporatist jurisprudence” and Ledbetter was part of a “campaign to restrict, rewrite, and squash anti-discrimination law.”[3] Liberal activists have labeled a majority of the justices on the Roberts Court as activists with a “rightward, pro-Big Business tilt” who have “disregarded precedents and long-held principles” in order to decide cases “in favor of large corporations.”[4]
Nor is such criticism limited to the media: Senator Arlen Specter (D–PA) launched a broadside against Chief Justice Roberts and Justice Alito on the floor of the Senate, unfairly and illegitimately portraying them as having “cavalierly set aside” the assurances they gave in their confirmation hearings of “fidelity to the law” and the principle of stare decisis in the Citizens United decision.[5] Specter’s statement demonstrates ignorance of the long line of precedents overturning bans on independent expenditures and little comprehension of the Supreme Court’s duty to enforce the Constitution and prevent Congress from abrogating the liberties of citizens through legislation. The Senator seems to believe that the Court should routinely rubber stamp whatever legislation Congress passes as long as it has had “extensive congressional hearings”—as if that justifies taking away fundamental rights like free speech that are guaranteed by the First Amendment.
Contrary to the cacophony of liberal criticism, the majority in both cases followed the original meaning of the Constitution or the applicable statute and did not engage in judicial activism. Indeed, to have ruled otherwise in these cases would have required the justices to ignore the language of congressional statutes and the original meaning of the First Amendment, and would have further ruptured a long line of precedent. Liberals, however, would have the Court do all these things in the name of their desired policy outcomes—actions that would constitute the very definition of judicial activism.
Citizens United
In Citizens United v. FEC, the Supreme Court threw out the federal ban on independent political expenditures by corporations and unions because, by effectively limiting speech, such a ban violates the First Amendment. Liberal activists and the mainstream media were swift to attack the decision as bad policy. For example, one article about the case decries the fact that it has “opened the floodgates of unlimited corporate spending in federal elections.”[6] Another discusses the terrible consequences of spending in elections by “the pharmaceutical companies, the insurance companies, Big Oil, or what President Eisenhower called the ‘military-industrial complex.’”[7]
But these policy assessments are quite skewed. First, one would never know from reading these liberal critiques that the Court’s decision applied equally to labor unions as well as corporations—a key omission which distorts the scope of the decision and the lack of even incidental favoritism for groups which could be characterized as favoring any particular political party. Perhaps relying on this mischaracterization and the public’s lack of knowledge about the applicability of Citizens United to unions, liberals in Congress have proposed legislation in the form of the so-called DISCLOSE Act,[8] which purports to “correct” Citizens United by imposing significant new restrictions on corporations, while exempting unions from many of the act’s more onerous, speech-restrictive requirements.[9]
Second, the depiction of multinational or “military industrial complex” corporations belies the actual facts of the case, and the genuine diversity of corporations whose free speech rights the Court vindicated. Just take the named party, Citizens United, a small, issue-oriented organization that will never be mistaken for, say, BP. Citizens United has an annual budget of only $12 million and most of its funds are donations from individuals.[10] It is a grass roots advocacy organization dedicated to reasserting “the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security.” The organization’s objective is “to restore the founding fathers’ vision of a free nation, guided by the honesty, common sense, and good will of its citizens.”[11]
By characterizing corporations exclusively as for-profit organizations, detractors fail to recognize that Americans tend to influence the political process by joining together with other like-minded individuals—something that the First Amendment, through its protection of associational rights, protects. Many times, these groups of like-minded people adopt corporate forms to take advantage of limited liability or tax advantages. Even the archetype of modern grassroots movements—the tea partiers—have adopted, through organizations like Tea Party Patriots, non-profit corporate operating structures. The fact that individuals who seek to influence the political process take a corporate form for the purposes of limited liability should not affect their ability to speak on issues of public concern. Indeed, the First Amendment does not permit government to restrict speech rights in exchange for adopting a corporate form. Were government able to do so, it could then restrict political speech of news agencies, which are almost universally corporations.
Leaving aside the misguided policy arguments made by opponents, the more serious criticism of the decision comes from those who claim that the five justices in the majority[12] were engaging in judicial activism. Specifically, these critics claim Citizens United is activist because the Court declared a federal statute unconstitutional and overturned prior precedent, Austin v. Michigan State Chamber of Commerce,[13] which had upheld a state ban on independent expenditures by a nonprofit trade association, and part of McConnell v. FEC,[14] which had upheld the “electioneering communications” provision of the Bipartisan Campaign Reform Act (a provision expanding the independent expenditure ban).
However, those criticisms ignore the fact that the Austin decision on independent expenditures and the part of the McConnell decision on electioneering communications were outliers in the Court’s First Amendment jurisprudence. The majority’s actions in Citizens United did not constitute judicial activism, but rather upheld basic First Amendment protections against unlawful encroachments by Congress. It is not judicial activism when a judge overturns two relatively recent decisions that were wrongly decided and that are in conflict with a long line of other precedents—particularly if the decision corrects constitutional errors. If this were not true, then the same critics of the Citizens United decision must believe that Plessy v. Ferguson[15] should still be the law of the land today and racial segregation should still be considered “constitutional” since under their slanted and sophomoric definition, the justices of the Supreme Court engaged in judicial “activism” in Brown v. Board of Education.[16] After all, the justices in Brown overturned Plessy and repudiated the “separate but equal” doctrine as unconstitutional—and arguably did so when they decided subsequent cases striking down similar policies by recalcitrant jurisdictions that acted contrary to Brown and its progeny.
The 100-Year Lie: Independent Expenditure Law Before Austin
The claims by some, including President Obama, that the Supreme Court’s Citizens United decision overturned 100 years of precedent are simply untrue. While Congress implemented a statutory ban on direct corporate contributions to federal candidates in 1907, a ban that Citizens United did not disturb, it did not impose a ban on independent political expenditures by corporations and unions until 1947 when it passed the Labor Management Relations Act.[17] Congress overrode President Truman’s veto of the Act even though he “warned that the expenditure ban was a ‘dangerous intrusion on free speech.’”[18] The constitutionality of such a ban was not reviewed by the Supreme Court for almost three decades after its passage, although the Court expressed its doubts about the act in more than one case.
As Justice Kennedy’s majority opinion in Citizens United points out, that question was in the background of a case considered in 1948 in which a labor union endorsed a congressional candidate in its weekly periodical. The Court did not reach the constitutional question because it held that the statute did not cover the publication, but it “stated that ‘the gravest doubt would arise in our minds as to [the federal expenditure prohibition’s] constitutionality’ if it were construed to suppress that writing.”[19] Four justices said they would have reached the constitutional question and held the expenditure ban unconstitutional, including staunch liberal Justices Hugo Black and William Douglas.
In two other later cases in 1957 and 1972, the Supreme Court refused to decide the constitutional issue, remanding one case on statutory grounds after which a jury promptly found the defendant not guilty of violating the statutory ban, and overturning another conviction under the ban again on statutory grounds without reaching the constitutional issue.[20] But in the 1957 case, three justices dissented, “arguing that the Court should have reached the constitutional question and the ban on independent expenditures was unconstitutional.”[21] The dissenters included Chief Justice Earl Warren, probably the most renowned liberal justice of the last century.
The seminal decision on campaign finance reform is without question Buckley v. Valeo,[22] the case in which the Court considered various challenges to the Federal Election Campaign Act of 1971. In addition to placing limits on direct contributions to federal candidates, this legislation also enacted a new independent expenditure ban that applied to individuals as well as associations, partnerships, corporations, and unions. The ban prohibited spending more than $1,000 “relative to a clearly identified candidate…advocating the election or defeat of such candidate.”[23] Although the Court upheld the limits on direct contributions because the governmental interest in the “prevention of corruption and the appearance of corruption” was sufficiently important, the Court threw out the limits on independent expenditures. As Justice Kennedy noted in Citizens United, the Buckley Court “explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that ‘the independent expenditure ceiling…fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,’ [ ] because ‘[t]he absence of prearrangement and coordination…alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’”[24] Only one justice dissented from this invalidation of independent expenditures limitations as a violation of the First Amendment.
Title: Judicial Activism, Not, II
Post by: Body-by-Guinness on June 16, 2010, 05:39:56 PM

The separate 1947 ban on all independent expenditures by corporations and unions codified in §441b was not considered by the Court in the Buckley decision because it was not challenged, but as Justice Kennedy correctly states, if it had been, “it could not have been squared with the reasoning and analysis of that precedent.”[25] In fact, the Buckley case cited approvingly to the dissent authored by liberal Justice Douglas in the Automobile Workers decision from 1957.[26]
Only two years after the Buckley decision, the Court once again struck down an independent expenditure ban in Bellotti v. First National Bank of Boston.[27] In an opinion written by Justice Lewis Powell, the Court ruled that a Massachusetts statute prohibiting corporations from spending any funds to influence or affect voters’ opinions on referendum issues violated the First Amendment. According to the Court, there was no support “for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation…In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.”[28] In fact, Bellotti was just the latest decision from the Court recognizing that First Amendment protections extend to corporations—Justice Kennedy cites to 22 such cases in his majority opinion in Citizens United.[29] Ironically, some of these involved corporations like the New York Times Company that have condemned the majority for its affirmation of free speech rights for corporations in Citizens United.
The Break with the Constitution and Precedent: Austin
It was not until Austin v. Michigan Chamber of Commerce[30] in 1990 that five justices of the Supreme Court suddenly overrode the long string of prior precedents and upheld a Michigan ban on corporate independent expenditures that supported or opposed a candidate for state office, a crime punishable as a felony. As Justice Kennedy notes, the Court simply bypassed Buckley and Bellotti as if they did not exist, creating a new justification for limiting political speech: “preventing the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”[31] What the Court did in Austin satisfies the very definition of judicial activism—it ignored the plain language of the First Amendment that “Congress shall make no law…abridging the freedom of speech” and ignored decision after prior decision recognizing the First Amendment rights of corporations and invalidating other independent expenditure bans.
The Court’s Consistent Rejection of Austin’s Logic
The Supreme Court’s Buckley decision made it clear that the only basis for upholding campaign finance regulations is to prevent “corruption or the appearance of corruption” in the election process. This “exception” to the rule of free speech guaranteed by the First Amendment was applied by the Court in a series of cases after Buckley. While it is not clear that the mere appearance of corruption should be sufficient to prohibit core First Amendment speech, the Court has time and again rejected other theories justifying campaign finance regulations such as “speech equalization.” In Buckley, the government argued that it had an interest in “equalizing the relative ability of individuals and groups to influence the outcome of elections” that justified limits on independent expenditures.[32] However, as the justices said in the per curiam opinion, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[33] This was upheld by the Court most recently in Davis v. FEC, in which the Court noted once again that preventing corruption or the appearance of corruption is the only legitimate and compelling governmental interest for restricting campaign finances and that the Court has continuously rejected equalizing the relative ability of different individuals and groups to influence elections as justification for a cap on independent expenditures.[34] Even in McConnell, the Court noted when assessing standing that there is no legal right to have the same resources to influence the electoral process.[35]
In 1985, the Court struck down a provision of the presidential public funding law that made it a criminal offense for a political committee to make an independent expenditure of more than $1,000 to further the election of a candidate receiving public financing.[36] In rejecting this ban on independent expenditures, the Court repudiated “the notion that the PACs’ form or organization or method of solicitation diminishes their entitlement to First Amendment protection. The First Amendment freedom of association is squarely implicated in these cases.”[37]
Justice Breyer, a noted liberal on the Court, wrote the opinion in Colorado Republican Federal Campaign Committee v. FEC[38] in 1996 that threw out state limitations on independent expenditures by political parties, noting that such expenditures fall “within the scope of the Court’s precedents that extend First Amendment protection to independent expenditures.”[39] When Justice Breyer authored the Court’s opinion in Randall v. Sorrell in 2006 that struck down expenditure limitations imposed by Vermont on individuals running for office, he once again cited preventing corruption and its appearance as the primary justification for governmental restrictions. Breyer noted that the Court had “considered other governmental interests advanced in support of expenditure limitations. It rejected each.”[40] Breyer pointed out, in contrast to his dissent in Citizens United, that over the past thirty years, “this Court has repeatedly adhered to Buckley’s constraints, including those on expenditure limits” and cited to seven other opinions since Buckley.[41]
All of these decisions that struck down various federal and state attempts to limit independent expenditures by individuals, political parties, candidates, political action committees, and associations make it very clear that the Court’s decision in Austin was truly an outlier that conflicted with the Court’s jurisprudence on independent expenditures. It was directly contrary to the leading and most significant precedent in this area—Buckley v. Valeo, a case that is constantly cited by proponents of campaign finance reform to support their views on this issue.
Restoring Established Precedent: Citizens United
As Justice Kennedy recognized in Citizens United, the Court was “confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them.”[42] Yet in defending the independent expenditure ban, the Solicitor General, Elena Kagan, basically abandoned the only justification given by the five-member majority in the Austin case—the antidistortion rationale that the justices had created. As Justice Kennedy said, Kagan instead tried to claim that the ban was justified on an anticorruption rationale and a shareholder-protection interest, grounds that had never been used to justify the ban on independent expenditures. The problem, of course, with the anticorruption rationale is that such a justification—if accepted by the Court—would allow the government to “prohibit a corporation from expressing political views in media beyond those presented here.”[43]
Under the rationale advanced by those critics, the Supreme Court should have upheld this federal statute and thus the ability of the government, as conceded in oral arguments by the government, to ban books or pamphlets with a political message— a claim that crystalizes the radical, anti–free speech nature of the law. Indeed, given that media corporations are only statutorily exempted from this federal law, had the Supreme Court deviated from the well-established Buckley line of cases and upheld the burdensome speech restrictions in the law, then consistent with the opinion, Congress at some future point could have eliminated the corporate media exemption, giving the government the authority to ban political speech by any media organization availing itself of a limited liability structure—from the New York Times to Fox News. Those who would seek to uphold the restrictions on non-media corporate speech while seeking broader protection for media corporations rest their claims on the argument that the press has a greater First Amendment right than individuals or associations, a view the Court has previously correctly rejected.[44]

The shareholder protection defense also asserted by the government would present the same problem, since it “would allow the government to ban the political speech even of media corporations” based on the disagreement of shareholders “with the political views the newspaper expresses.”[45] There is also no evidence of abuse by corporations that cannot be corrected by shareholders or that would justify the Court “creating” a new rationale for approving the government’s violation of the First Amendment.
The reasons for correcting the outlier error that is Austin are clear, and were articulated by the Court in Citizens United. First, the Court noted that precedent should be respected “unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”[46] The Austin decision was poorly reasoned and “itself contravened this Court’s earlier precedents in Buckley and Bellotti.”[47] Second, the government did not even defend Austin’s antidistortion rationale, and when a party does not defend “the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished.”[48] Third, and most importantly, Austin relied on a faulty historical record of campaign finance laws and “abandoned First Amendment principles.”[49]
The majority’s opinion in Citizens United was not an act of judicial activism; it was an act of correction, overruling a twenty-year-old case erroneously decided by five justices who clearly substituted their policy views on how elections should be conducted for the dictates of the First Amendment— contravening a long line of other precedents and the Constitution itself. Instead, the Court returned to the principles that had been established in prior decisions, particularly Buckley and Bellotti, that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.”[50] As Chief Justice Roberts pointed out, the Court had “no way to avoid Citizens United’s broader constitutional argument” because the applicable statute clearly applied to Citizens United and prohibited its actions.
The dissent clearly believed that Citizens United should lose the statutory and constitutional claims it was making in the case, yet those justices then bizarrely argued that “the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law… It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majority is not ‘serious about judicial restraint.’”[51] As the Chief Justice correctly observed, this argument is based on the false premise that avoiding deciding constitutional questions “somehow trumps our obligation faithfully to interpret the law.”[52] Here, the majority faithfully interpreted the constitutional protection in the First Amendment against the abridgement of the right to speak by Congress—it would have constituted judicial activism to studiously ignore the First Amendment as the dissent urged and uphold an obviously unconstitutional federal statute.
In Ledbetter v. Goodyear Tire & Rubber Co.,[53] the Supreme Court held that the discriminatory acts that triggered the time limit for filing a claim with the Equal Employment Opportunity Commission could only be discriminatory pay decisions, not later nondiscriminatory pay decisions that supposedly perpetuated the effects of the earlier discrimination. As another example of supposed judicial activism, one critic of the five-member majority’s opinion written by Justice Alito claimed the Court had ruled against a “woman paid less than her male peers for 20 years” because she failed to file her suit “within 180 days of the first instance of discrimination” (a statutory requirement) and even “though she had no way of learning about the discrimination until years later,”[54] a patently false claim. Another report criticizing the “infamous” and “outrageous” decision of the majority, again falsely stated that Ledbetter was unaware of the discriminatory treatment and claimed that the majority was “twisting employment and labor law to serve corporate wrongdoers.”[55]
Contrary to all of these criticisms, the majority’s opinion in Ledbetter was a straightforward application of the law passed by Congress governing discrimination claims. Ledbetter, a female employee of Goodyear Tire & Rubber Company, had filed a claim with the EEOC asserting that Goodyear had discriminated against her in her job evaluations because she was a woman, actions that resulted in her receiving lower pay. She then filed a lawsuit claiming violations of the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The Equal Pay Act claim was dismissed but a jury found in favor of Ledbetter’s Title VII claims.[56]
Title: Judicial Activism, Not, III
Post by: Body-by-Guinness on June 16, 2010, 05:40:20 PM

Title VII makes it unlawful to discriminate “against any individual with respect to his compensation…because of such individual’s…sex.”[57] Congress placed a statute of limitations in Title VII, requiring an employee to first file a charge with the EEOC within a specified period, either 180 or 300 days depending on the state, “after the alleged unlawful employment practice occurred.”[58] If a claim is not filed with the EEOC within that time limit, no lawsuit can be filed.[59] In trying to determine whether Ledbetter filed her lawsuit in compliance with the applicable statutory time limit, the Court emphasized “the need to identify with care the specific employment practice that is at issue.”[60] Under a disparate treatment claim such as was asserted by Ledbetter, prior precedent specified that the central element of the Court’s analysis must be determining the discriminatory intent of the defendant.[61]
Ledbetter claimed her case was timely filed because she was issued discriminatory paychecks during the 180 days before her EEOC filing, and also pointed to a decision to deny her a raise that was made during that same time period. However, she did not claim that any of these occurrences were the result of intentional discriminatory treatment by Goodyear; instead, she claimed that “the paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period. Similarly, she maintains that the 1998 decision [to deny her a raise] was unlawful because it ‘carried forward’ the effects of prior, uncharged discrimination decisions.”[62] In other words, Ledbetter was claiming that her lawsuit was timely even though the intentionally discriminatory treatment (her negative job evaluation) had occurred before the charging time period because the evaluation “had continuing effects during that period.”[63] Under her view, every paycheck that gave a woman less pay would be a separate violation of Title VII, with a new statute of limitations beginning to run with each paycheck, “regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period.”[64]
The problem with this view of the law was that it was completely contrary to the prior precedents of the Court, not that the five justices in the majority were engaging in judicial “activism” to “twist” the law in favor of a corporate defendant. The real hypocrisy in this case was demonstrated by Justice Stevens, a liberal lion celebrated by the Left, who dissented and seems to have completely changed his views of the law even though the law has not changed. This is demonstrated by one of the precedents cited by the majority as the basis for its interpretation of the statute of limitations, United Air Lines, Inc. v. Evans.[65]
In United Air Lines, the Court rejected an almost identical claim because it was untimely. The plaintiff, Evans, was forced to resign because United refused to employ married flight attendants, but she did not file an EEOC claim. When she was later rehired, United refused to give her credit for her prior employment for purposes of seniority. Although Evans admitted she had not filed an EEOC claim based on the original, intentional discrimination that caused her resignation, she argued that United’s refusal to give her credit for her prior service gave “present effect to [its] past illegal act and thereby perpetuated[d] the consequences of forbidden discrimination.”[66] The Court rejected the claim as untimely in an opinion authored by none other than Justice Stevens:
United was entitled to treat [Evans’ termination] as lawful after respondent failed to file a charge of discrimination within the [relevant time period]. A discriminatory act which is not made the basis for a timely charge…is merely an unfortunate event in history which has no present legal consequences.”[67]
As Justice Alito pointed out in the majority opinion in Ledbetter, “t would be difficult to speak to the point more directly.”[68]
The United Air Lines decision was simply one opinion out of a number of others that applied the same rule—that the intentional act of discrimination must occur within the relevant time period under Title VII and it is not sufficient that the later effects of that discrimination occur during the time period. The time in which to file with the EEOC begins to run from the date that the intentional discrimination occurs. In the majority’s opinion, Justice Alito pointed to Delaware State College v. Ricks,[69] in which a college professor’s claim was dismissed as untimely because he filed his claim after he was terminated, not when he was denied tenure, which was the act of intentional discrimination he was contesting. Justice Alito also noted Lorance v. AT&T Technologies, Inc.,[70] in which the claim of female union workers was dismissed as untimely because they filed their claim after they were laid off due to low seniority, not when the rules governing seniority were changed in the union contract, which was the specific act that the women were claiming was intentionally discriminatory. As Justice Alito wrote, the Court held in these prior cases “that the EEOC charging period ran from the time when the discrete act of alleged intentional discrimination occurred, not from the date when the effects of this practice were felt.”[71]
After the Lorance decision, Congress actually amended Title VII to cover the specific seniority problem in that case, allowing liability from an intentionally discriminatory seniority system both at the time of its adoption and at the time of its application.[72] But it did not amend the law to change the results of the Delaware State College or United Air Lines decisions. Critics of the Ledbetter decision apparently wanted the Court to overlook these prior precedents, the legislative history of the law, and the law’s statutory text, in order to change the results of the case for a sympathetic plaintiff.
Ledbetter’s attempt in her case to circumvent the intent requirement and the time limit imposed by Congress in the statute was “unsound.” As Justice Alito noted, this would shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability “in the absence of the requisite intent.”[73] It would also distort the integrated, multi-step enforcement process of Title VII. Furthermore, such a holding would have violated the Court’s stated desire to be respectful of the legislative process that crafted this statute and “give effect to the statute as enacted.”[74]
Ledbetter also claimed that another Supreme Court case required different treatment of a pay claim. Bazemore v. Friday involved employees of a state agency that originally segregated its employees into “a white branch” and “a Negro branch,” with the latter receiving less pay.[75] In 1965, the branches were combined but the disparate pay continued. After Title VII was amended in 1972 to cover public employees, the black employees sued over the dual pay disparity. The Court held that those claims were not time barred because the state agency had adopted a facially discriminatory pay structure that continued after 1972. Therefore, “the employer engages in intentional discrimination whenever it issues a check to one of these disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded as intending to discriminate on the basis of race as long as the structure is used.”[76]
But the situation in Bazemore was distinctly different than the situation in Ledbetter: “Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is facially nondiscriminatory and neutrally applied. The fact that precharging period discrimination adversely affects the calculation of a neutral factor…that is used in determining future pay does not mean that each new paycheck constitutes a new violation and restarts the EEOC charging period.”[77] There was no evidence (and no claim) that Goodyear had adopted its pay system in order to discriminate on the basis of sex, so the Bazemore rationale did not apply to the Ledbetter case.
The claims made by critics that Ledbetter did not know about the discrimination and that the limitation should have been stayed are also not in accord with the facts in that case. The Court noted in its decision that it was not addressing the discovery issue because Ledbetter did “not argue that such a rule would change the outcome in her case.”[78] In other words, she made no claim that she did not know about the discrimination; in fact, her claims of sex discrimination “turned principally on the misconduct of a single Goodyear supervisor, who, Ledbetter testified, retaliated against her when she rejected his sexual advances during the early 1980’s and did so again in the mid-1990’s when he falsified deficiency reports about her work.”[79] It is obvious that Ledbetter could not argue that the statute of limitations for filing an EEOC claim should be stayed because she clearly knew about the unwelcome sexual advances and the deficiency reports being filed by her supervisor. The fact that the supervisor who was accused of wrongdoing had died by the time this case went to trial also provides a good example of why statutes of limitation are important—if Ledbetter had filed her claim in accordance with the time limit in the statute, the supervisor’s testimony would have been available to the EEOC and the courts. Such limitation periods put defendants on notice of claims and prevent stale claims from being brought at a time when witnesses are no longer available or documentary evidence has been destroyed under normal document retention policies.
Many of Ledbetter’s arguments in this case were “policy arguments in favor of giving the alleged victims of pay discrimination more time before they are required to file a charge with the EEOC.”[80] But those policy arguments were being made to the wrong branch of the federal government. It was Congress, not the Court, which chose a very short deadline for filing employment discrimination claims with the EEOC. Critics who did not like that short deadline apparently wanted the Court to “twist” Title VII to write that deadline out of the statute. Because the majority refused to do so, but instead applied the statute as written, they are supposedly “activist” judges who were defying Congress in favor of a corporate defendant.
These charges simply cannot be supported by what happened in this case. The decision and its legislative aftermath actually demonstrate the best features of the U.S. constitutional system and the separation of powers designed and built into it by the Framers. The Supreme Court followed stare decisis and its own precedents and interpreted Title VII’s statute of limitations as it was promulgated by Congress. Congress did not like the result and, listening to the policy (as opposed to legal) arguments made in this case, changed the law with the Lilly Ledbetter Fair Pay Act of 2009. This act amended the 180-day statute of limitations for filing a pay discrimination claim with the EEOC to make it clear that liability would accrue (and the time limit would begin to run) not just when the discriminatory employment practice occurs, but with respect to discriminatory compensation:
[W]hen a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practices, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wage, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.[81]
Following President Obama’s unseemly (and inaccurate) attack on the Supreme Court’s ruling in Citizens United during this year’s State of the Union address, a chorus of liberals, including Obama’s press secretary, congressional Democrats, and a number of liberal activist organizations, have mimicked the claim that the Supreme Court is controlled by “conservative activists.” This most recent attack comes on the heels of similar criticism that has been made about the Court’s ruling in the Ledbetter case.
But the facts of these cases and an examination of the legal analysis applied by the justices in their majority opinions show that there is no merit to any of these claims. These criticisms are actually evidence of the vulnerability to the charge of Left-wing activism that has been properly and correctly leveled against some liberal federal judges for refusing to follow the law and imposing their social and ideological views in the courtroom. By ascribing the “activist” label to conservative judges, liberals appear to be attempting to damage the public image of the Supreme Court and specific justices. These attacks are also clearly an attempt to propagate a moral equivalency with liberal judges who are, in actuality, activists. It is unfair to the justices on the Court who participated in these decisions and is a cynical and derisive tactic that injures the public’s faith and confidence in the judicial system.
—Robert Alt is the Deputy Director of, and Hans A. von Spakovsky is a Senior Legal Fellow in, the Center for Legal & Judicial Studies at the Heritage Foundation.
Title: NRA Disclosed
Post by: Body-by-Guinness on June 17, 2010, 06:23:49 PM
Note: cross posted per Crafty's request.

I'm an NRA Life Member and certified instructor and so am not usually one to argue against them. They, however, have made a Faustian bargain with Democratic lawmakers who usually seek to do them ill to exempt themselves from the "Disclose" bill soon to be voted on in the house, a bill that looks to me like it's narrowly tailored to prevent some types of political speech while leaving other unhindered.

I think the NRA's stance is tremendously short sighted. As I put it elsewhere, the good news is that the NRA struck a deal where the 3rd amendment is concerned, too, and such won't have to quarter troops at their corporate headquarters. The bad news is that the rest of us need to make up the guest bed. An article that speaks to a related sentiment follows:

NRA exemption shows campaign disclosure bill's cynical, fatal flaws
By Cleta Mitchell
Thursday, June 17, 2010; A21

The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.

The NRA "carve-out" reaffirms the wisdom of the First Amendment's precise language: "Congress shall make no law . . . abridging the freedom of speech."

Congress can't help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents' mouths. The Disclose Act is a doozy of a muzzle.

For its part, the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for "neutrality" from the legislation's requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation. The Second Amendment surely cannot be far behind.

Since the court's January decision in Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures, Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them. To foreclose that possibility, the Disclose Act would impose onerous and complicated "disclosure" restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.

Democrats would effectively neuter the court's decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech), requiring the CEO of a corporate donor to personally appear in campaign-related ads, expanding the coverage period to virtually the entire election year, and including myriad other rules that the NRA described last month as "byzantine" and an "arbitrary patchwork of reporting and disclosure requirements."

The NRA's wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure? Forget it.

Receiving less attention than the NRA "carve-out" but no less cynical is the bill's sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members' dues aggregate less than $600 in a calendar year and thus members' contributions to labor's campaign-related spending wouldn't need to be disclosed . . . even to the union members whose dues are spent for political purposes.

In Citizens United, the court held that the First Amendment doesn't permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.

The NRA carve-out is a clear example of a congressional speech license.

The ostensible purpose of the legislation is benign "disclosure," upheld in Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that "running a democracy takes a certain amount of civic courage."

That's true. Indeed, the law upheld in Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.

But the Disclose Act isn't really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.

It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.

This is not just "disclosure." It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.

The writer is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRA's board of directors.
Title: Incumbent Protection Plan Disclosure
Post by: Body-by-Guinness on June 18, 2010, 01:31:38 PM
Return of the Speech Police
Only in the Through the Looking-Glass world inside the Beltway could the DISCLOSE Act — a piece of legislation meticulously crafted to protect Washington’s two most powerful special-interest groups — be presented to the public as a courageous stand against special-interest groups. A vote on the bill scheduled for today was canceled after the Blue Dog Democrats and the Congressional Black Caucus objected, for very different reasons, but the bill’s backers promise to bring it back. They shouldn’t: Though it is cloaked in populist rhetoric, the DISCLOSE Act is, like every other piece of campaign-finance legislation, a cynical bid to secure the interests of those two powerful constituencies — incumbents and the media.

The DISCLOSE Act is a project of Rep. Chris Van Hollen (D., Md.), head of the Democratic Congressional Campaign Committee, and Sen. Charles Schumer (D., N.Y.), the most reliably anti-corporate Democrat that Wall Street money can buy. The bill is the Democrats’ response to the Supreme Court’s decision in Citizens United v. Federal Election Commission, which held that the First Amendment protects the right of an activist group to distribute a film critical of Hillary Clinton during her presidential campaign, even though some of the money for the project had come from businesses and non-profit corporations, the free-speech rights of which previously had been restricted by the McCain-Feingold Act. Citizens United restored the right of citizens to raise their voices — and money — for or against the candidate or cause of their choice, regardless of whether those citizens happen to be organized as a business or a group of businesses, a nonprofit corporation, etc. One would think that such a decision would be cause for general rejoicing in a country where free speech is the first item on the Bill of Rights. In reality, the decision sent incumbents into a panic; as it happens, most of the incumbents are Democrats this time around, but bear in mind that this mess was started by a piece of legislation named for the Republicans’ last presidential nominee.

The DISCLOSE Act is, among other things, a petty piece of corruption. It selectively applies rules about how political communications are designed and financed, and does so in such a way as to restrict the ability of independent citizens’ groups to bring their grievances to the public square. For instance, if a coalition of small banks wanted to put together an advertising campaign to go after the bipartisan architects of the bailouts, their efforts would be hobbled by onerous rules about what appears in the ads and how they are paid for. Worse, DISCLOSE goes far beyond McCain-Feingold, restricting political speech that was perfectly legal even before the Citizens United decision. By redefining thousands of businesses and non-profits as “government contractors,” it bans them from so much as mentioning an incumbent or candidate from three months before the primaries all the way through the general election — four months before the primaries in the case of presidential elections. That’s a six-month media blackout for congressional elections and more than a year in presidential races.

Advertised as an effort to restrict the influence of special-interest groups, the DISCLOSE Act in fact contains a special exemption for the special-interest group par excellence, the National Rifle Association, whose opposition the Democrats did not believe they could withstand. So while other gun-rights organizations, such as the Second Amendment Sisters, would be caught up in the legislation’s cumbrous and invasive disclosure requirements, the NRA would be exempt from the worst of them. The exemptions would cover AARP as well, while smaller organizations — or large ones formed more recently — would be disadvantaged by the rules. When Chuck Schumer teams up with the NRA, something strange is afoot. (It was the NRA carve-out, and not the bill’s attack on free speech, that drew the Congressional Black Caucus’s objections.)

The bill also includes exemptions for the union bosses who did so much to put Barack Obama in the White House and Nancy Pelosi in the speaker’s chair. Under DISCLOSE, contributions raised in aggregate — from union dues, to take one non-coincidental example — would only have to be disclosed when an individual’s annual contributions exceed $600. Most union members see slightly less than that expropriated from their wages annually. As campaign-finance lawyer Cleta Mitchell observes in the Washington Post, this means that in most cases union members’ “contributions to labor’s campaign-related spending wouldn’t need to be disclosed . . . even to the union members whose dues are spent for political purposes.” In somebody’s imagination, that strange arrangement constitutes transparency.

But this is not really about the NRA or the AARP or the SEIU. This is mainly about defending the seats of incumbents and, secondarily, protecting the influence of the mainstream media.

There are three main kinds of capital in politics: access, publicity, and money. Incumbents, firmly ensconced in positions to which they are reelected at an astonishing rate (94 percent of House incumbents were reelected in the 2008 elections), control the access. The media controls the publicity. And that leaves money — including the money needed to circulate political criticism — as the only area in which those outside the cozy nexus of politics and press have a reasonable chance to compete. Thus, campaign-finance “reformers” have been trying to diminish that source of competition for years. When independent political voices are muffled, that leaves incumbents of both parties in a relatively strong position: They already control ballot access, districting, and the Federal Election Commission. Restricting independent critics leaves the field to the two parties’ incumbents and their media surrogates. You do not want political incumbents to dominate the electoral process for the same reason you don’t want the CEO to be chairman of the executive-compensation committee: There is too much opportunity for self-dealing.

Likewise, the restriction of independents groups’ ability to craft and distribute political communications leaves the establishment media in a stronger position; though the foundation of its historical oligopoly is crumbling under the pressure of new-media competitors, the old media is determined to cling to what advantages remain to it. The legacy press resents the ability of independent groups to advance criticisms and narratives that have not been vetted in editorial offices in Washington and New York, and it jealously guards its role as public-opinion kingmaker. It is no surprise to find the DISCLOSE Act being endorsed by the likes of the New York Times.

The DISCLOSE Act goes far beyond disclosure. Too far, in fact. A bill simply requiring disclosure of contributors to electoral and issue-advocacy campaigns — timely disclosure, to be published on the FEC’s website for public scrutiny — would provide the transparency voters need without the free-speech restrictions we abhor. But such a bill would do little or nothing to advance the interests of Washington’s biggest power players, and so the Democrats propose to resuscitate the DISCLOSE Act instead, if they can cut a deal with the Blue Dogs and the Black Caucus. The health-care debate proved that the Blue Dogs can be bought off, and the Black Causus probably will not stand up to Pelosi and Schumer for very long. It will be up to Republicans to stop this bill, on constitutional and moral grounds, and they should do so.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 21, 2010, 05:36:05 AM
I would like to extend some discussion here, but begin with some material from the Immigration thread.  Recent discussion there has been about a literal reading of the Constitution vs. an originalist (or original intent of the Framers) reading of the Constitution.  If you gents will indulge me, I would like to formulate a discussion of sorts here.  It will necessitate a series of posts from me, hopefully with at least a few responses per post. 

First, if I may, based on my understanding of original intent, and many posts in the Immigration thread and in other threads here (this one and the American Creed), is it safe for me to assume that all of the supporters of original intent (body-by Guinness; Guro; GM, etc.) agree

a) that the Framers of the Bill of Rights intended to extend the rights therein (speech; bear arms; etc. etc.) to individuals, and as such that these rights should not be considered group rights (as, for example, the liberal members of the Supreme Court understand the Second Amendment).
b) that the intent of the Framers of the 14th Amendment intended to guarantee these rights to former slaves and their offspring.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on June 21, 2010, 06:10:38 AM
Uhm, so far so good, but why can't I escape the feeling a sharp has just set up a 3 card monte table?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 21, 2010, 07:14:12 AM
Can we agree that corporations are/were not freed slaves?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on June 21, 2010, 07:16:49 AM
Okay. . . .
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 21, 2010, 07:38:32 AM
BD,  On your first point, literal reading vs. original intent, I think for me it is both, with the exact words coming first and the original intent and context used to discern meaning of the actual words.  For example, if a clause used to grant rights to slave families is later used to promote lawbreaking and break down borders, I would still start with the actual reading.  If it only said 'all persons born here' then they are in, until amended. But if it follows with phrases of contradiction like under the jurisdiction or state in which they would reside, I would try to look very very closely at the actual words and meaning before drawing an absurd, unintended conclusion.

On the second point, I don't follow you that right extended to individuals are not granted also to groups of individuals, a well-regulated militia bearing arms or a group of Bush-haters pooling their resources to buy a full page calling the commanding general of our forces in time of war "General Betray Us".  It is an individual right and a group right by extension because the individuals in the group have that freedom of expression no matter how ugly the substance.

Corporations are not freed slaves. Probably didn't need to stop and wait for us on that one. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 21, 2010, 02:00:09 PM
As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals.  And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 21, 2010, 10:17:59 PM
Let's say that I have half of enough money to buy a political ad and let's say (hypothetically) that I have a close friend named bigdog who also has half of enough money to buy a political ad and that both of us feel very strongly about some political issue, let's say we oppose the Vietnam war, and let's say that each of us individually has the constitutionally protected right of freedom of political speech, but to do this together we had to form a C-corp, an S-corp, an LLP, and LLC, a 501c3 or whatever the hell the rules of organization cause us to form in order to cooperate in the matter...  Where in that little story did we lose our God-given right to speak out with all of our heart and all of our resources without being silenced by an unrestrained, oppressive government?  Just curious.
It seems to me that any organization that government has the power to destroy should have the power to speak out against such an action.  Where in the literal reading of: "Congress shall make no law abridging the freedom of speech" does it say organizations will have no such protection?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 22, 2010, 05:11:38 AM
Let's say that I have half of enough money to buy a political ad and let's say (hypothetically) that I have a close friend named bigdog who also has half of enough money to buy a political ad and that both of us feel very strongly about some political issue, let's say we oppose the Vietnam war, and let's say that each of us individually has the constitutionally protected right of freedom of political speech, but to do this together we had to form a C-corp, an S-corp, an LLP, and LLC, a 501c3 or whatever the hell the rules of organization cause us to form in order to cooperate in the matter...  Where in that little story did we lose our God-given right to speak out with all of our heart and all of our resources without being silenced by an unrestrained, oppressive government?  Just curious.
It seems to me that any organization that government has the power to destroy should have the power to speak out against such an action.  Where in the literal reading of: "Congress shall make no law abridging the freedom of speech" does it say organizations will have no such protection?

I didn't say organizations will have no such protection.

Very nice work, and you anticipated where I was going in this.  There is nothing about the Constitutional convention, the ratification of the Bill of Rights, or the ratification of the 14th Amendment that suugests that the corporations were originally intended to have the rights and liberties afforded individuals.  So, according to a stict use of original intent, corporations should not have speech rights, etc.  However, a literalist approach ("Congress shall make no law...") would certainly provide for this. 

As you can see, there is nothing necessarily "leftist" about a literal interpretation.  There is nothing inherently "rightist" about original intent.  Or vice versa.  However, as I have said elsewhere, I personally find the literalist approach to be the most convincing.  I also attempt to be consistent with the application, rather than using original intent when it suits the political preferences I have, the literalist when I think will help me reach a preferred position, etc.   
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 22, 2010, 10:02:25 AM
"So, according to a strict use of original intent, corporations should not have speech rights, etc."

No, by my take on original intent or literal reading, rights don't come from government.  Simultaneous with some being enumerated in the amendments it was made very clear that the enumeration of certain rights "shall not be construed to deny or disparage others".  The rights of these groups of individuals aligned for business, political, religious, familial  or whatever reasons would have pre-existed (IMO) and nowhere in the literal reading or original intent is the government granted the power to take them away.

"As you can see, there is nothing necessarily "leftist" about a literal interpretation."

Agree.  We have to go with the words as written.  As I wrote earlier, we use intent and context to help clarify the meaning of the words, as written. 

One of my favorite quotes was Chief Justice Roberts during confirmation hearings.  Asked what he would do "beyond loyalty to the process of law" what else he would do, he replied:

"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That sounds like literal reading to me and Roberts is no leftist.  I think the framing of this as literal reading vs. original intent is incorrect.  I think the politics of it today is literal reading with respect for original intent vs. the living breathing evolving organism view where it is appropriate to change our view of the meaning with the times or to suit our objectives.  If the original document contained flaws of times like slaves being 3/5 a person or women not voting, then the literal reading and original intent was to use the amendment process to fix it, not just read new meaning into it.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 22, 2010, 12:16:47 PM
"So, according to a strict use of original intent, corporations should not have speech rights, etc."

No, by my take on original intent or literal reading, rights don't come from government.  Simultaneous with some being enumerated in the amendments it was made very clear that the enumeration of certain rights "shall not be construed to deny or disparage others".  The rights of these groups of individuals aligned for business, political, religious, familial  or whatever reasons would have pre-existed (IMO) and nowhere in the literal reading or original intent is the government granted the power to take them away.

"As you can see, there is nothing necessarily "leftist" about a literal interpretation."

Agree.  We have to go with the words as written.  As I wrote earlier, we use intent and context to help clarify the meaning of the words, as written. 

One of my favorite quotes was Chief Justice Roberts during confirmation hearings.  Asked what he would do "beyond loyalty to the process of law" what else he would do, he replied:

"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That sounds like literal reading to me and Roberts is no leftist.  I think the framing of this as literal reading vs. original intent is incorrect.  I think the politics of it today is literal reading with respect for original intent vs. the living breathing evolving organism view where it is appropriate to change our view of the meaning with the times or to suit our objectives.  If the original document contained flaws of times like slaves being 3/5 a person or women not voting, then the literal reading and original intent was to use the amendment process to fix it, not just read new meaning into it.

We are largely in agreement, it would seem.  As an FYI, much of my point was not directed at you, per se.   

However, there are many rights that do come from government.  The right to vote, for example (and one that you reference).  If it takes an amendment to fix it, then it must be government granted, yes?  Women, African-Americans, and 18 year olds all were given the right to vote via amendment. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 22, 2010, 01:19:29 PM
"However, there are many rights that do come from government.  The right to vote, for example (and one that you reference).  If it takes an amendment to fix it, then it must be government granted, yes?  Women, African-Americans, and 18 year olds all were given the right to vote via amendment."

Quibbling slightly just over perspective, but the right to participate in governing our own affairs is God-given or intrinsic (IMO) and the restrictions or barriers on that come from the mortals around us like our parents growing up and then from our government - sometimes for our own good, sometimes not.  The amendments, seems to me, were removing the government's restrictions on those people's right to participate.   :-)
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 23, 2010, 03:57:52 AM
On which day did God create those rights?  Kings used to argue their divine right to rule, too.  That did not, of course, make it true.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Freki on June 23, 2010, 05:57:33 AM
This is a drive by posting, I have not read everything in this conversation so maybe making a point which has been made before.  The difference between God given rights and government given come down to this, if the rights come from gov't then gov't can take them away.  If they come from God then they are intrinsic," inalienable", and no one can take them away.
Title: Commerce, Necessary and Proper, and Obamacare
Post by: Freki on June 23, 2010, 06:19:24 AM
Ran across this goes to original intent discussed in the current conversation.

Commerce, Necessary and Proper, and Obamacare
by Jim Delaney, New York Tenth Amendment Center

Having culled through reams of often esoteric judicial analyses and rulings since ratification of the Constitution in 1787, the inescapable conclusion is that over the years the Supreme Court, Congress and the Executive have egregiously misinterpreted and progressively broadened the original and intentionally narrow meaning the Framers attached to both the Commerce Clause and the Necessary & Proper Clause. And therein lies the problem: liberal misinterpretation of these clauses has provided the national government the means to extend federal jurisdiction and control far beyond the Framers’ original intent and purpose.

Obamacare’s “individual mandate” has once again put Art 1, Sec 8, Clause 3, the Commerce Clause, front and center. And like all things Constitutional these days, even a casual observer can readily see that over the years the courts and the politicians have managed to grossly distort–indeed violate–the original meaning, intent and spirit of this clause by a litany of tortured legal argumentation and capricious social engineering justifications.

To begin with, the Commerce Clause states that the United States Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Not surprisingly, when linked with Art 1, Sec 8, Clause 18, aka the Necessary and Proper Clause, the federal government empowers itself to further and irresponsibly expand the original scope of the Commerce Clause

By way of background, as a direct result of the Founders’ unsettling experience with the Articles of Confederation, the Framers understood the practical need to better ensure uniformity in interstate commerce, that is to say the unencumbered “trade or exchange” of goods among the states, this in order to achieve efficient interstate commercial intercourse free of state-imposed discriminatory and retaliatory restrictions such as duties which if left unchecked could well have led to the collapse of the union itself.

As James Madison counseled, “[the federal regulation of commerce] is necessary to preserve the Union, for “without [such regulation], the Union will infallibly crumble to pieces.” Therefore, as nearly as I can deduce this effort at achieving uniformity was intended to reduce, minimize, or altogether eliminate needless and onerous state-mandated barriers and petty regulations which served to deleteriously impede the free and efficient trade or exchange of goods among the states. Period.

It is important to note that the extent of congressional jurisdiction over interstate commerce may be easily found in Clauses 5 and 9 of Art 1, Sec 9:

Clause 5: “No Tax or Duty shall be laid on Articles exported from
any state.”

Clause 6: “No Preference shall be given by any Regulation of Commerce
or Revenue to the Ports of one State over those of another: nor
shall Vessels bound to, or from, one State, be obliged to enter,
clear, or pay Duties in another.

Clearly, the emphasis is on interstate duties and revenues, not upon the articles/goods traded or produced. Thus, as originally understood the power to regulate interstate trade did not mean the authority to prohibit, nor did it in any way imply the power to impose penalties for violations of the Commerce Clause.

Important to note too is that the Necessary and Proper Clause, a clause much exploited by progressives over the years, was in no way intended by the Framers to permit the federal government to assume any authority outside its clearly defined enumerated powers in Art 1, Sec 8. Simply put, our wise Framers were careful not to permit an ends justifies the means scenario. To wit, in John Marshall’s discussion of McCulloch v Maryland, he clearly drew a distinction between the proper definition of “necessary” as meaning “indispensably requisite” versus the improper definition being that of “convenient”. In other words, the federal government could not arrogate unto itself any extraordinary implementing power other than that which was clearly “indispensably requisite” in order to execute its clearly defined enumerated powers, in this case to regulate interstate commerce. In truth, a cursory examination of case law since ratification of the Constitution demonstrates how the proper definition has often been ignored, misconstrued or grossly misinterpreted by an overweaning Congress and an enabling gaggle of misguided or politically activist jurists over the years.

Having scanned applicable Federalist papers and Samuel Johnson’s Dictionary of the English Language, the latter which guided the Framers in their choice and meaning of words, it is obvious that the Constitutional meaning of “commerce” was limited to the trafficking and exchange of goods between the states from one port to another, and not at all to the regulation of INTRAstate production, manufacturing, sale, or the quality of goods/articles; that, therefore, the central and sole purpose of the Commerce Clause was to affirmatively prevent the confusing, conflicting and disorderly imposition of duties among the states. Nothing more.

Even casual examination of founding documents underscores our Framers’ clear understanding that “regulate” in 1787 meant “to make regular or normal” or “to remove impediments” to the free flow/transportation of interstate commerce. Again, it manifestly did not mean federal control or the federal imposition of regulations over the intrastate production of goods and services.

Significantly, the US v E.C. Knight Co. ruling in 1895, aka the Sugar Trust Case, asserted the states’ sphere of power in matters of commerce thusly:

1. Production is always local, and under the exclusive domain of the states
2. Commerce among the states (interstate commerce) does not begin until goods commence their final movement from their state of origin to that of their destination.
3. The sale of any product is merely an incident of its production and is therefore under the domain of the state because its effect on interstate commerce is merely incidental.
4. Combinations or associations organized for the sale and distribution of goods are under the regulatory power of the state since the effect on interstate commerce is indirect, not direct.

Can’t get clearer than that. The ruling upheld and sharply emphasized the core restraints on federal power as intended by the 10th Amendment.

Following passage of the Interstate Commerce Act of 1887 which created the Interstate Commerce Commission, the latter which was principally intended to check railroad abuse and discrimination, the level of federal usurpation which ensued has been nothing short of mind-boggling–almost laughable if it weren’t so utterly unconstitutional. (For example, I learned that the hapless hamburger is now subject to no fewer than 41,000+ state and federal regulations, covering everything from meat production, grazing practices of cattle, conditions in the slaughterhouse, processing methods, sales to retailers, restaurants and fast-food outlets. Ketchup is another example of regulatory overreach: to be considered Grade A, it must flow no more than 9 centimeters in 30 seconds at 69 degrees Fahrenheit. Progressive insanity!)

Though Congress has cited the Commerce Clause to justify its healthcare usurpation, logic and an objective analysis of original intent clearly demonstrate that individual mandates are woefully unconstitutional. But to myopic and progressive “living constitution” adherents who care little about the original meaning of the Constitution, or, frankly, the Constitution in any of its original form, Obamacare is merely another whimsicalnecessary and proper expansion of the federal government’s implied vs enumerated powers. Where are our Founders when they are so sorely needed?! Where are our uncorrupted constitutional scholars and jurists?!

Get the New Book Today!

With particular respect to Obamacare, I couldn’t find one single court ruling in the history of the United States which remotely endorsed the right of the federal government to mandate that every person purchase a product or service or be fined for not doing so. Not one! And though it’s difficult to imagine that even a liberal Supreme Court could clear-headedly and in good conscience rule in favor of this mandate, I wouldn’t underestimate the corrosive influence of judicial activism and congressional overreach which have characterized the rule of law in these United States over the last 100 years. And should the Supreme Court uphold Obamacare, which is more likely than not, then Americans must carefully recall and take to heart these words in the Declaration of Independence:
“…But when the long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government [or abusive power], and to provide new guards for their future security.” Amen to that!

So, if the courts fail to restore constitutional governance, and the chances are better than even they won’t, what’s the answer to this unrestrained federal overreach? Very simply, we must take action to restore the sovereignty of “we the people”!!! Our merely waiting for the next election to throw the bums out and to replace them with what will likely be only slightly less progressively tainted legislators sounds good, but will accomplish nothing. Inescapably, state nullification action–with teeth–in combination with widespread civil disobedience are most likely the only way to restore constitutional order. It’s now or never…


(“…whensoever the General Government assumes undelegated powers, its acts are
unauthoritative, void, and of no force; where powers are assumed by the federal government which have not been delegated by the Constitution, a nullification of the act is the rightful remedy.” James Madison, & Thomas Jefferson, Kentucky & Virginia Resolutions, 1798)

(“The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.” Thomas Jefferson, ltr to Albert Gallatin, 1808)

(“The court will almost assuredly resort to the great defense shield of denial known as ’stare decisis’ as a clever way of protecting the courts own judicial malpractice from scrutiny while at the same time leaving its vast centralization of power in Congress intact.” P.A. Madison, Federalist Blog, 2010)

Jim Delaney writes for the New York Tenth Amendment Center from Rochester-Greece, and maintains the blog, Opinerlog.

Copyright © 2010 by Permission to reprint in whole or in part is gladly granted, provided full credit is given
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 23, 2010, 08:17:16 AM
Freki nailed it: "if the rights come from gov't then gov't can take them away."

Is murder wrong because of an ordinance or statute or was it wrong - intrinsically - before the law was passed?  The Declaration of Independence says some truths are self-evident and certain rights are endowed by the Creator; the constitution lays out that government powers are limited and enumerated (for congress they are in Article 1 Section 8 ) while rights are pre-existing and unenumerated.

The rights of freedom and consent of the governed do not come from government in my view. Governments are more in the business of taking our freedoms away, as with the King example and his false authority over his subjects.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 23, 2010, 12:19:28 PM
But the US government is "by the people, for the people" so it isn't really the same proposition as the king taking rights.  Murder was only legally punishable with the creation of government.  It might have made people mad, and been a part of the "state of nature" but it was punished in the way that we think of it before the creation of the state.  Likewise, there is no reason for God to have created to right to participate in our governance without the creation of a government. 
Title: Metaphoric Machetes
Post by: Body-by-Guinness on June 23, 2010, 03:23:22 PM
We are arguing starting points here from which rights do, or do not, flow. I'm agnostic to the point most religious folk call me atheist and so have trouble with constructs that invoke a supreme being. With that said, I want government to pretty much leave me the frack alone and thus for utilitarian, pragmatic, and selfish reasons embrace a political ethos from which I'm most likely to derive as little interference from the state as attainable. If natural rights or whatever you care to label it take me there, that's fine by me.

Plenty of less pleasant first premises to be had. BD already alluded to the Hobbesian one, we got Mao's "power flows from the barrel of a gun," we have Marx's "from each according to his ability, to each according to his needs," to various religious schemes that would have the common folk prostrating themselves before the edicts of an imaginary omnipotent being as conveyed by well rewarded intermediaries, to the whole divine right of this or that despot crowd, to kleptocracies, oligarchies, kakistocracies, or alloys made of any of the above. There are a lot of schemas available from which the connivers, predators, lame idealists, and con persons among us can chose to create systems of governance conducive to their ends. My goal is to foil 'em and so select first principles in which despotic growths will have a hard time taking root.

We could endlessly argue from what source the right to live a life unencumbered by a malevolent government springs; philosophers haven't settled any existential question of this scope so there's little chance we'll arrive at some sort of universal agreement. The philosophes among the framers knew this and so labored instead to set up system under which despotic impulses would have a hard time coalescing. Can't defending and bulwarking that accomplishment be an end unto itself? I'll grudgingly participate in a discussion seeking to whittle down principles of governance to their root, but have little doubt that the frames from which we view this task leave little likelihood of achieving anything close to unanimity. As such I'd much rather participate in discussions examining how best to cleave back odious government than discuss the philosophical underpinnings that lead us to pick up the machete.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on June 23, 2010, 05:22:03 PM
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
   - 9th Amendment

How can people retain other rights if they weren't already there?  Where did those rights come from?  God-given to me is an expression for pre-existing.  I'm happy to call them intrinsic rights, natural rights, moral rights, or inalienable rights.  Government can take them away like a thief, rapist or murderer can take, but you still started with those rights of freedom, I believe.

"But the US government is "by the people, for the people" so it isn't really the same proposition as the king taking rights."

 - Only if a minority takes away rights from the majority or a majority takes rights from the minority do I see a similarity.  When we rob Peter to pay Paul and only get Paul's consent, there is a similarity.  To the extent that one congress passes programs that cannot be undone by a later one, it fails the test of consent of the governed IMO.  We didn't hire the bums to take away our rights and the founders were certainly trying to make it harder to do that.

" reason for God to have created the right to participate in our governance without the creation of a government."

 - I am pro-government, up to roughly the limits set forth in the constitution.  Like BD wrote earlier, I don't think we are that far apart.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on June 23, 2010, 09:53:14 PM
Although I believe in a Creator, I like BBG's post. :-D
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Rarick on June 24, 2010, 03:04:11 AM
Government is simply human farming, the harvesting of taxes.  Here in America there are theoretical feedbacks that prevent that farming from becoming to exploitive.  I say theoretical because they haven't been getting used- or have been "preceeduraly modified" out of use.  Individuals acting together is what made this country great, at various time individuals decide to form a union, or a new party-maybe transform and old one?  Various of these originally necessary actions have gotten coopted and tranformed over the years into something other than what was intended.

We now sit in an interesting time.  A major political party is going thru a transformation, So is the economy and America is also deciding on its future charachter.  I am doing my part to push it in a direction I prefer since I definately do not want it to go down the Central managed road of big government, which is where it will go.  I have been in a kind of watchful apathy for years, but I am feeling the necessity of doing something, and some thing are moving in the right direction.  To get it moving there a lot of the silent majority has to start pushing too.  I do my thing and wonder who else is going in the same general direction and hope there are enough.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on June 26, 2010, 07:09:09 AM
As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals.  And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?

Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 28, 2010, 04:31:27 AM
As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals.  And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?

Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.

Their was, indeed, quite clear.  That is why "press" is included in the First Amendment. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on June 28, 2010, 05:19:04 AM
Hmm, NRA publishes a lot of news so does that mean they shouldn't have been impacted by McCain Feingold and thus don't have to embrace expediency and sell out where the Disclose Act is concerned?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on June 28, 2010, 06:45:04 AM
Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 28, 2010, 07:51:10 AM
Hmm, NRA publishes a lot of news so does that mean they shouldn't have been impacted by McCain Feingold and thus don't have to embrace expediency and sell out where the Disclose Act is concerned?

The point of NRA's radio show was to move around BCRA. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 28, 2010, 07:51:56 AM
Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?

Oh, a living Constitution argument!!!!  Pretty liberal thiniking GM. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on June 28, 2010, 08:01:05 AM
You are avoiding answering my questions.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on June 28, 2010, 10:37:39 AM
Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?

Well, this is kind a b.s. question from an original intentist.  The freedom of press has always meant the freedom to produce political news. 

"Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate."  Oh, there goes the difficulty of original intent again.

Blackstone: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on June 28, 2010, 10:53:42 AM
It's quite evident that the intent of the founders was the freedom of the press, and that it included businesses that owned such presses, and although the could not anticipate a coporate entity such as GE/NBC/MSNBC, they enjoy the same constitutional rights as a revolutionary era news sheet on a hand cranked printing press.
Title: Cleavin' the Kid
Post by: Body-by-Guinness on June 29, 2010, 05:27:06 AM
The point of NRA's radio show was to move around BCRA.

I'm sorry, the NRA generates magazine, television, radio, and web content that all perform a reporting function, and has done so to one degree or another for the 40 years I've been a member. Not sure what the acronym you refer to is, but does the NRA's press credentials armor them against the free speech prohibitions contained in McCain/Feingold and the Disclose Act? If not, how does one cleave that baby? If so, why should we care what unconstitutional prohibitions congress bats around?
Title: Re: Cleavin' the Kid
Post by: bigdog on June 29, 2010, 08:50:46 AM
The point of NRA's radio show was to move around BCRA.

I'm sorry, the NRA generates magazine, television, radio, and web content that all perform a reporting function, and has done so to one degree or another for the 40 years I've been a member. Not sure what the acronym you refer to is, but does the NRA's press credentials armor them against the free speech prohibitions contained in McCain/Feingold and the Disclose Act? If not, how does one cleave that baby? If so, why should we care what unconstitutional prohibitions congress bats around?

I am aware that the National Rifle Association presents ideas in those media, and has done so for the 12 or so years that I have been a lifetime member.  That does not change the fact the NRA purposefully began its own radio program so that it could act in a manner not prevented by the BCRA.  Do you remember all of the hype when it strated its radio programming.  It made announcements for months that the reason for the new format was so that BCRA did not prevent it from voicing political messages. 

Much of BCRA has been overturned, in Citizens United.  Why are we talking abouth this now?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on June 29, 2010, 08:58:54 AM
Much of BCRA has been overturned, in Citizens United.  Why are we talking abouth this now?

Uhm, because you brought the acronym that I'm only identifying by context up?

I don't think we are necessarily on different sides here; I'm just astounded by deconstructions that cleave out some biased information sources as "press" and others as "issue advocacy." Anyone producing a boilerplate broadsheet is the press, IMHO, and thus protected by the first among other amendments. The attempt to segregate out voices that may impede incumbency protection scams strike me as unconstitutional sleight of hand at best.
Title: Digging Into McDonald
Post by: Body-by-Guinness on June 29, 2010, 09:00:12 AM
A Few More Points on McDonald

Posted by Ilya Shapiro

I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:

Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause.  No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause — just denying to take up the issue in light of the long line of Substantive Due Process incorporation.

Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision.  While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes.  Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states.  That means P or I is relevant and enters the casebooks and Court precedent.

The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments.  They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age.  This may or may not be correct as a matter of policy or social science — the evidence I’ve seen seems to point against them — but it’s irrelevant to the legal analysis.  If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate.  As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation.  Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.

Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible.  One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”  The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.

Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous.  There but for the grace of God goes any right — and any limitation on government power.  As I said yesterday, “Thank God that vote is Justice Thomas’s.”
For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.
Title: NRA media in the wake of BCRA
Post by: bigdog on June 29, 2010, 09:01:06 AM  
Title: Legislative Intent
Post by: G M on June 29, 2010, 05:16:20 PM

E.  Sources for Legislative Intent
                Legal researchers may need to look beyond the enacted language of a statute to find the intent of the lawmakers in drafting the law.  Legislative history research may be used as a means of interpreting a statute.  The sources for legislative intent follow the history of the passage of the law, from introduction to committee documentation to floor debate and Presidential remarks.
Title: How did four Supreme Court justices wind up arguing against the Constitution?
Post by: G M on July 01, 2010, 01:05:33 PM

Leftism trumps constitution for four.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on July 06, 2010, 08:38:04 AM
I would like to bring over from the Kagan thread, one paragraph at a time, the 2 columns of suggested questions from George Will that nicely summarize the differences between the main schools of thought on interpreting the constitution.  Starting with the last question first, I would challenge anyone here who says they are reading only the exact words of the constitution to help us understand perhaps the most important ruling of our lifetimes, the one liberals and liberal justices (for lack of a better term) hold most dearly, the right to slaughter your young:

"In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number?"
Title: Preamble of the Bill of Rights
Post by: Crafty_Dog on July 10, 2010, 08:22:32 AM
Pasting this post by PC on the Well Armed People thread here.  This is an excellent and usually overlooked point.
 Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind; things like saying the Second Amendment was put in the Bill of Rights to make sure the government had soldiers at the ready and now it is outdated for that purpose. In other words this wasn't about protecting a citizens right to keep and bear arms at all but instead it was about protecting the United States from attack and it was put there as a benefit to the government and the states to have a armed militia.
 This poison pill that they have drilled into our heads and into every lawyer and Constitutional expert that comes out of our finest schools, has been what the enemies of freedom have hung their hat on in order to strip the Second Amendment of its power to protect citizens from tyranny. Of course the latest ruling from the Supreme Court of the United States, has worked as an antidote to lessen the effect of that poisonous idea. However, the poison is still there in every major work on the Bill of Rights and Constitutional law. So here I would like to counter these ideas with some simple facts that you might use to correct the record.
 Let's start with first things first. What was the intended purpose of the Bill of Rights to begin with? For that we can look at the preamble to the Bill of Rights. What? Never heard of that before? I wonder why? Well, here it is:

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine

THE Conventions of a number of States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that futher declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent starts of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

 The second paragraph states the reason and purpose for the Bill of Rights, including the Second Amendment by the way, very plainly..."in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent starts of its institution."
 It makes it very clear that these amendments are intended to restrict the government and not to give it protections, but instead to ensure public confidence. Next, what the Second Amendment actually said before it was misconstructed and abused and rewritten by the poisonous pen of interpretation.

Second Amendment

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

 The first part is what the interpreters deem to contain the important meaning and purpose of the amendment and the last half, according to them, is just meaningless drivel. Now, anyone who's thinking hasn't been impaired by the poisonous ideas planted in all the literature about the Second Amendment would immediately recognize the first part as being a supporting statement to what follows, and they would respect the placement of commas that separate the statement from the declaration and restriction clause. What did the Preamble say? " order to prevent misconstruction or abuse of its powers, that futher declaratory and restrictive clauses should be added." and what does the last half of the Second Amendment say? This is the declaratory part, note the comma: "the right of the people to keep and bear arms, And the restrictive part: shall not be infringed."
 The first part that mentions the Militia as a supporting statement, is just one given reason among many as to why this declaration and restriction had its place in the Bill of Rights and it has no importance or bearing on its meaning at all, at least not if you believe the preamble. Which might explain why it is never mentioned in all those expert opinions.
 Am I really that much smarter than all all those Constitutional experts?  These people are despicable for intentionally misleading the public and undermining our rights by way of academic terrorism. This is intellectual dishonesty at its worse. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 12, 2010, 04:57:13 AM
I can say P.C. begins his post with a broad generalization that is also false.  It is not the case that "Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind; things like saying the Second Amendment was put in the Bill of Rights to make sure the government had soldiers at the ready and now it is outdated for that purpose"  (my emphasis).

I know of many college courses that neither focus on nor support this particular interpretation of the Bill of Rights and the Second Amendment in particular. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on July 12, 2010, 05:51:24 AM
I know of many college courses that neither focus on nor support this particular interpretation of the Bill of Rights and the Second Amendment in particular. 

**Maybe as many as a dozen, I bet.**  :roll:
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on July 12, 2010, 07:34:24 AM

How do you teach this point?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 12, 2010, 07:54:59 AM
Guro Crafty, I teach my students that there is a debate, and I give the historical discussions around both a collective and an individual right.  We have used many original documents, including the letter from Ashcroft to the NRA-ILA from 2001 (maybe 2002, not in my office at the moment).  We also read much from the Founding period, including the Federalist and the Anti-Federalist's ideas.  (This is a general overview, since I have upper and lower level classes, and I try to alter the material taught every semester in some of the classes.)  I have also been asked by liberal and conservative student organizations to come to their meetings to discuss my personal feelings toward the 2nd Amendment, at which point I am never shy about providing being blunt about the way that I feel about it.  I will also say that I hope to develop a class dedicated to the 2nd amendment within a few years.   

I must also say that I am not the only member of the faculty at my college with a pro-2nd Amendment personal preference.  Additionally, GM, for all of your eye rolling, I can tell you that there are many faculty members at many colleges and universities who do not have "liberal" agendas, some of whom are themselves conservative, and many of whom are honest enough to inform their students of competing viewpoints.  So, no, not a dozen, but over the course of 10 or so years, probably more like a few hundred. 

There are also colleges and universities that are known as conservative.  I doubt very much that the majority of classes at Oral Roberts, James Madison, and Wheaton College, for example, are subjected to liberal ideas regarding the 2nd Amendment. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on July 12, 2010, 08:09:02 AM
Thank you.

PC's point about the Preamble seems to me quite strong.  Indeed, IMHO it demolishes any idea that the Second is not an individual right.  What do you think?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 12, 2010, 08:28:44 AM
Thank you.

PC's point about the Preamble seems to me quite strong.  Indeed, IMHO it demolishes any idea that the Second is not an individual right.  What do you think?

I have always thought it was an individual right.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on July 12, 2010, 08:33:36 AM
Understood, but I seek to push further than that.  I seek to assert that there is no reasonable position to the contrary-- which would also mean that the material should be taught that way too , , ,  What do you think?

Brief · July 12, 2010

The Foundation
"I want an American character, that the powers of Europe may be convinced we act for ourselves and not for others; this, in my judgment, is the only way to be respected abroad and happy at home." --George Washington

Re: The Left
"Attorney General Eric Holder and the rest of the open-borders DOJ team have invoked a 'preemption' doctrine based on the U.S. Constitution's supremacy clause to attack Arizona's anti-illegal immigration measure and oppose local and state enforcement of federal immigration laws. Never mind that the Arizona law was drafted scrupulously to comply with all federal statutes and the Constitution. You gotta love Obama's fair-weather friends of the Constitution. When a state acts to do the job the feds won't do, Obama's legal eagles run to the Founding Fathers for protection. When, on the other hand, left-wing cities across the country pass illegal alien sanctuary policies that flagrantly defy national immigration laws and hamper cross-jurisdiction enforcement, the newfound federal preemption advocates are nowhere in sight. The Obama DOJ's lawsuit against Arizona is sabotage of the people's will and the government's fundamental responsibility to provide for the common defense." --columnist Michelle Malkin

"[T]o ascribe the word 'sector' to the limitless Unconstitutional and unnecessary public 'businesses' is pure subterfuge. The plunder sector is the only accurate title for what the government does outside its strict Constitutional scope. Any and all government 'stimulus' retards growth because it removes current and future wealth from its producers and gives it to central planners who are not subject to the market but to voters, a significant part of which do not pay for the bread and circuses they demand.... But if Barack Obama is trying to implode the system, and he is to succeed in doing so, how does he know that the people of this nation will not revolt? Does he assume that people will simply demand a government that makes all of their decisions for them? Perhaps he knows that this is a failing battle, but he realizes that if we manage to teeter for years on the edge, at least he will have accelerated the decline for fundamental transformation, swelling the public payroll and finances, sufficiently hobbling the private sector, weakening our morale and making people exponentially more reliant on government. Even if he cannot push all the way to totalitarian collectivism, he can still get us close enough that is almost impossible to repeal massive statism." --columnist Andrew Mellon

"Today, Americans are stifled by big government, smothered by over-regulation, and taxed to death. Our Founding Fathers who risked everything they had -- their fortunes, their families, their lives -- to secure freedom for us would not recognize our current economic reality as anything even close to the economic liberty they worked so hard to secure. Yes, we are endowed by our Creator with the right to 'life, liberty and the pursuit of happiness'. But the government formed to protect those rights now makes it awfully hard for Americans to see economic liberty anywhere and nearly impossible to pursue financial security and the happiness that comes with it. It's time to reclaim a bit of that old time religion. It's time to secure economic liberty by cutting taxes, reducing regulations and shrinking the size of government. We've got to free individuals to use our God-given talents and imaginations to build a better life for ourselves and our children or we will eventually lose our liberty altogether." --columnist Rebecca Hagelin

"When you see that trading is done, not by consent, but by compulsion -- when you see that in order to produce, you need to obtain permission from men who produce nothing -- when you see money flowing to those who deal, not in goods, but in favors -- when you see that men get richer by graft and pull than by work, and your laws don't protect you against them, but protect them against you -- when you see corruption being rewarded and honesty becoming a self-sacrifice -- you may know that your society is doomed." --author and philosopher Ayn Rand (1905-1982)

The Gipper
"If there's any message that I wish to convey today, it is: be of good cheer. We're coming back and coming back strong. Our confidence flows not from our skill at maneuvering through political mazes, not from our ability to make the right deal at the right time, nor from any idea of playing one interest group off against the other. Unlike our opponents, who find their glee in momentary political leverage, we [nourish] our strength of purpose from a commitment to ideals that we deeply believe are not only right but that work. ... We are, and proudly so, but we are also the keepers of the flame of liberty." --Ronald Reagan

For the Record
"How might our founders have commented about [the] U.S. Supreme Court's decision upholding our rights to keep and bear arms? Justice Samuel Alito, in writing the majority opinion, said, 'Individual self-defense is the central component of the Second Amendment.' The founders would have responded 'Balderdash!' Jefferson said, 'What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.' George Mason explained, '(T)o disarm the people (is) the best and most effectual way to enslave them.' Noah Webster elaborated: 'Before a standing army can rule, the people must be disarmed. ... The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.' Contrary to Alito's assertion, the central component of the Second Amendment is to protect ourselves from U.S. Congress, not street thugs." --economist Walter E. Williams
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 12, 2010, 09:26:10 AM
Sorry about the misunderstanding.  I disagree.  Teaching politics isn't the same as teaching science or math.  I think we can all agree that 2+2=4, or the correct definition of a vector (for examples).  And, while there are some facts about politics (100 senators; bicameral legislature), there are also opinions.  There is a great deal of disagreement, among reasonable and educated people, about the meaning of the 2nd Amendment.  In the same way that you wouldn't want me to teach the greatness of Warren Court (say), others wouldn't want me to teach one side of a multisided issue.  In many constitutional areas (2nd Amd; privacy; expansion of presidential powers, etc. etc.) I expose students to competing views and ask them to think about it.  What are logical fallacies, which side presents a better argument, which is most compatable with what you know of early and modern American history, and the like.  Form an argument and support it.  I can't (or won't) teach what to think.

I should add, however, that will happily discuss the decison to incorporate the 2nd to the states!
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on July 12, 2010, 10:15:28 AM
**PC makes a very strong case, of course.**

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

**I've always wondered how those that argue the above is a collective right don't think the amendment below is also just a collective and not individual right.**

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on July 12, 2010, 10:30:24 AM

So, given what the Preamble says, what does a reasonable argument against the Second being an individual right look like?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on July 12, 2010, 10:57:54 AM
BD, see any patterns here?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 12, 2010, 02:08:58 PM

So, given what the Preamble says, what does a reasonable argument against the Second being an individual right look like?

I didn't say there are reasonable arguments, I said that reasonable people debate.  I don't say that for mere semantical reasons.  I, personally, don't find anti-2nd amendments to be right.  I have become convinced, through my own reading, that the right is an individual one.  That does not mean that everyone feels that way.  I would rather that students, if they become convinced, become convinced because of their ideas and research than me decideing it for them. 

Here are some sources for the other side though: David T. Konig, "Arms and the Man: What Did the Right to 'Keep' Arms mean in the Early Republic?" Law and History Review, Spring 2007.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 12, 2010, 02:28:10 PM
BD, see any patterns here?

I sure do.  I see that evidence is often misconstrued and misleading.  Here are some possible ways:

1, there are many states, including the one where I reside, where there is no such thing as a "registered" Republican or Democrat.  According one source,, there are 17 such states, including Michigan, Missouri, Texas, Vermont, and Virginia.  All of these states have at least one university that I would consider "elite."

2, there is no definition of an "elite" university.

3, since only about 20-30 "elite" university's are discussed, that leaves several hundred that were not discussed.  I wonder about the ideological make up there, since the vast majority of college students are being educated at those types of schools.

4, just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom.

5, the generation that became "radicalized" and was teaching in 1964 is retiring or has retired.  I can virtually guarantee that in 10-20 there will be little discussion about the politics of college professors.

6, I have been on several academic job interviews, and I wasn't asked about my political preferences at any of them.

7, there may be a self selection problem.  Professors don't make much money, despite the arguments to the contrary.  If may be that conservatives largely take their talents to the private sector, where the pay is better.  

As for guns on campus, I am frustrated that there aren't more schools that recognize the right to carry.  However, public schools are beginning to allow their students to do so, and private colleges aren't bound by the Bill of Rights.  
Title: Shopping for a Higher Authority
Post by: Body-by-Guinness on July 12, 2010, 02:38:54 PM
An interesting tangent:

Calling in the World Court against the Gun Trade

Posted by Walter Olson

Just before the holiday I sent off to Encounter Books the manuscript of my next book, tentatively titled Schools for Misrule: Law Schools and an Overlawyered America. One of the themes the book explores is how, after years of arguing that courts should read the U.S. Constitution as requiring the adoption of the liberal policy agenda of the moment (welfare rights, free health care, or whatever), cutting-edge law school thinking now promotes the idea that international human rights law requires the adoption of that same agenda. Thus the U.S. Supreme Court ruled in San Antonio v. Rodriguez (1973) and Milliken v. Bradley (1974) that the U.S. Constitution does not mandate (respectively) “Robin Hood” school finance redistribution and school busing across district lines; now it’s argued that both decisions need to be revisited and overturned as contrary to (ever-evolving) conceptions of international human rights. Similarly, there are said to be internationally recognized rights to government-provided housing, day care, and even (at least in Europe) tourism.

These notions are at odds with longstanding ideas of sovereignty and national independence, as held by (among many others) the Founders of this Republic. That they could also pose more direct dangers to individual liberty is suggested by a news item that drew only passing attention a few weeks ago: Chicago Mayor and long-time anti-gun advocate Richard Daley convened an assembly on global issues at which (per the Chicago Sun-Times) he “convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.” According to another local news report, Daley “said American gun manufacturers should be held responsible in the World Court, since American-made guns are used in violent crime elsewhere in the world.” Philadelphia Mayor Michael Nutter and the mayor of Mexico City were among those endorsing the idea. David Kopel at Volokh Conspiracy has much more on the conditions that would have to be met for the World Court to assert jurisdiction.

Chicago and its mayor were in the Second Amendment spotlight most recently with the McDonald case, in which the U.S. Supreme Court struck down the city’s ultra-strict anti-gun ordinance as in violation of the Bill of Rights. But the real antecedent of Daley’s latest idea was the late-Nineties litigation ginned up by anti-gun advocates and trial lawyers on behalf of three dozen cities and counties, which mostly fared poorly in court, yet still, through sheer cost-infliction, very nearly achieved its goal of off-the-statute-books gun control through litigation). That litigation campaign was decisively rejected and stopped in its tracks by Congress in the Protection of Lawful Commerce in Arms Act, signed by then-President George W. Bush in 2005. In other words, Daley is seeking an international end run around both the Bill of Rights and the democratically expressed will of the American people. Aren’t Chicago voters tired of this yet?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 12, 2010, 02:59:30 PM
This is an interesting post.  I think I would like to read the book discussed.  I think that liberals should be careful what they ask for.  Brennan and Marshall began the call to allow (for lack of a better term) what became known as "new judicial federalism."  The conservative justices won that battle.  I think liberal justices, judges, and attorneys should have more foresight than they seem to when it comes to new ways to address judicial political use.  (And before people jump down my throat, please note that I am not advocating for this, or any, interpretation, other than what is found within the document itself.)
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on July 12, 2010, 03:36:27 PM
Think you're right, BD, re getting bit by expediency down the line. I lived in Madison, WI when PC speech codes were all the rage, and spent a lot of time explaining to sweetness and light Nazis that their prior restraint predilections cut both ways and that they wouldn't always be the ones waving the baton. Never ceases to amaze me how many folks assume the now is as it is and ever shall be.

Also respect the ethic you bring to the classroom. Far as I'm concerned a prof is doing his or her job if you have few clues as to what the true views are. Think a classroom should be thought as a smorgasbord and profs should instill good eating methodologies and let the rest take care of itself.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on July 12, 2010, 11:37:39 PM
My experience does not correspond with yours. As a student in non-elite schools, I've been subject to profs who felt their role was that of propagandist for post-modern neo-marxist dogma. As a criminal justice student, I took a class on sexual assault, and instead of actually getting useful information on the subject to enhance my skills as a law enforcement officer I got to read on how America was a "rape culture" and every sexual act between a man and a woman was an act of rape because no woman in our society could truly give consent, and any woman who thought she did was a victim of "false consciousness".

I took a class on "multicultural communication" which was nothing but a extended rant by the prof on the evils of America, western civilization and anything remotely christian, heterosexual and/or white.

In addition, I had a personal connection to an academic who was the product of a elite schools and seeking a tenure track position in academia in those school. She was utterly terrified of me dooming her career because of my line of work and political opinions. She was a wide-eyed believer in all the leftist drivel she had been immersed in since since her undergrad days.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 13, 2010, 04:45:46 AM
My experience does not correspond with yours. As a student in non-elite schools, I've been subject to profs who felt their role was that of propagandist for post-modern neo-marxist dogma. As a criminal justice student, I took a class on sexual assault, and instead of actually getting useful information on the subject to enhance my skills as a law enforcement officer I got to read on how America was a "rape culture" and every sexual act between a man and a woman was an act of rape because no woman in our society could truly give consent, and any woman who thought she did was a victim of "false consciousness".

I took a class on "multicultural communication" which was nothing but a extended rant by the prof on the evils of America, western civilization and anything remotely christian, heterosexual and/or white.

In addition, I had a personal connection to an academic who was the product of a elite schools and seeking a tenure track position in academia in those school. She was utterly terrified of me dooming her career because of my line of work and political opinions. She was a wide-eyed believer in all the leftist drivel she had been immersed in since since her undergrad days.

I'm not saying that it never happens, and I too was in at least 2 classes as an undergraduate where similar teachings occured.  But I majored in history and political science, so 2 of the 30 or so classes I had to take didn't seem so bad to me.  And, I never saw anything similar to when I was in graduate school, either in the classes I took or TA'd in.  All I am saying is that I think, given all of the professors that I know, the instances are overreported (or at least overblown).  Thank you for sharing your experience.     
Title: Re: Preamble of the Bill of Rights
Post by: prentice crawford on July 13, 2010, 01:51:01 PM
Pasting this post by PC on the Well Armed People thread here. this is an excellent and usually overlooked point.
 Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind;
Woof bigdog,
 I'm not one to nit pick but when someone states that I made a false statement I feel that it would be incumbent on them to read what I said. There is and has always been only one set of facts regarding the meaning of the Second Amendment and to render it in any other way is to distort those facts. When someone teaches these distorted ideas in the interest of fairness whether they believe the false idea or not, they are still spreading the poison none the less. It's like a math teacher saying,"Two plus two is four. However, there are many out there that say two plus two is actually 22 and there is a whole body of work done by authoritative experts that makes a compelling case for that and it's so compelling that now there is no certainty that two plus two is acually four."
 I didn't say that all professors make up the false ideas or that there wasn't another side being taught; what I said was that Liberals have poisoned the well and those poison ideas have spread throughout the body of work on the Second Amendment. Which makes it very easy for guys like Michael Bellesiles to rewrite history to fit a political agenda today.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: prentice crawford on July 13, 2010, 02:56:20 PM
 By the way, the words "well regulated" in context of the times as it is written in the Second Amendment, means sufficiently equipped and had nothing to do with government regulations. You see the Federal government nor the states, provided arms to the citizen militia, so how could they arm themselves if they didn't have the right to buy and keep their own? And the "free state" that's referred to means the individual states, not the national state. Who were they worried about as far as their security and freedom? The Federal government. Which is why they put this in the Constitution. Two plus two equals?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 13, 2010, 04:40:23 PM
     The issue I had with your post was not the inherent message, it was the claim that "ANY class... or book" will poison the mind or some such.  That is the part that isn't true.  The Second Amendment Primer doesn't.  Any book by John Lott doesn't.  Any book written by Wayne LaPierre doesn't.  And neither does every single class in college. 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: prentice crawford on July 14, 2010, 01:43:18 PM
Woof Bigdog,
 Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.

 "The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms."
                                                           Federalist #46 Madison, author of the Bill of Rights and the Second Amendment

 "A well regulated militia, composed of the gentlemen, freeholders, and other free men was necessary to protect our ancient laws and liberty from the standing army. And we do each of us, for ourselves respectively, promise and engage to keep a good fire lock in proper order and to furnish ourselves as soon as possible with and always keep by us, one pound of gunpowder, four pounds of lead, one dozen gun flints and a pair of bullet moulds, with a cartouch box or powderhorn and bag for balls."
   Fairfax County Militia Plan, written by George Mason, co author with James Madison of the Second Amendment

 "Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped."
                               Federalist#29 Hamilton

Title: Evolutionary Liberty
Post by: Body-by-Guinness on July 14, 2010, 02:00:52 PM
Nice confluences contained herein:

Cato Unbound: Does Evolution Imply Libertarianism?

Ronald Bailey | July 14, 2010

What relevance, if any, does Charles Darwin and evolutionary biology have for libertarianism? This issue is being debated this week over at Cato Unbound, by University of Northern Illinois philosopher Larry Arnhart, University of Minnesota biologist PZ Myers, Santa Fe Institute behaviorial scientist Herbert Gintis, and Rutgers University anthropologist Lionel Tiger.

Arnhart, author of Darwinian Natural Right: The Biological Ethics of Human Nature, argues that Darwin and the findings of evolutionary biology do offer support for the normative claims of classical liberalism. Arnhart defines classical liberalism as

the moral and political tradition of individual liberty understood as the right of individuals to be free from coercion so long as they respected the equal liberty of others. According to the liberals, the primary aim of government was to secure individual rights from force and fraud, which included enforcing laws of contract and private property. They thought the moral and intellectual character of human beings was properly formed not by governmental coercion, but in the natural and voluntary associations of civil society.

On my reading, Arnhart is arguing that classical liberalism better conforms to what evolutionary psychology is confirming about human nature. Societies whose institutions try to go against human nature will do less well than societies whose institutions enable the flourishing of our natures. But if that is so, why is it that truly liberal societies have emerged only in the past two centuries? After all, human nature has not changed much in the past several millennia. (My personal answer is the cultural evolution is a trial-and-error process that is slowly discovering institutions that increasingly conform better to human nature.)

So far, only Myers has responded to Arnhart arguing that he claims too much. Meyers asserts:

Evolution gives us only very general rules for our species. Adapt to the environment, or die. Change is inevitable.

Question to Myers: Just what social and economic systems better recognize and enable people to adapt and change? Possibly those based on the principles of classical liberalism?

Myers points out that all kinds of political tendencies have tried to wrap themselves in the blanket of Darwinian science, including the Revolutionary Communist Party. After all, Karl Marx famously asked Darwin if he might dedicate the first volume of Das Kapital to him. Darwin turned down the honor. I don't know what the Revolutionary Communists might be up to, but at least one prominent leftist, Princeton philosopher Peter Singer, argued that findings of evolutionary biology about human nature do put constraints on leftist social policies. Singer makes these limits explicit in his book, A Darwinian Left: Politics, Evolution, and Cooperation.

To illustrate Singer's thinking, let me share some excerpts from my 2000 interview with him on this topic:

Reason: Let me put it differently: What limits should be set on a program of egalitarianism?

Singer: Right, right. That's a different question. I think the limits ought to be essentially those that can be achieved without the kind of authoritarianism that would be incompatible with fairly liberal democratic traditions and without enormous costs and enormous loss. You have to consider whether you're going to trade off some element of the total overall prosperity of a society for the sake of having it be more egalitarian. I think those are questions of judgment. I think it's reasonable to trade off some measure of that, but obviously not enough to create a widespread hardship....

Reason: What does Darwinian thinking tell the left about why so many of the social programs they have favored have had difficulties or have failed?

Singer: It tells the left that some of them have failed because their goals were really unrealistic. For example, if their goals were to achieve equality and to combine that with a high degree of liberty--to have the state withering away, as Marx said--it's very difficult to see how you're going to be able to achieve that. If you let the state wither away, then humans' natural tendencies to form hierarchies and rank and so on are going to assert themselves. What happened specifically with the form of communism that was attempted in the Soviet Union and Eastern Europe was that people went into it with some vague idea that they could have this sort of society. But they kept needing to strengthen the power of the state rather than allow it to wither away. In that sense, the original idea would just collapse. You simply couldn't achieve it. Human beings are not such that you could expect them to work for the common good in the way that the theory assumed. The failure to understand that human nature is not as plastic as socialists often assume is a substantial part of why some of these schemes have failed.

Myers concludes his response to Arnhart by asserting:

Evolution does not incline us to classical liberalism; it is just one of many options that evolution allows.

Indeed, evolution per se may not so incline us, but as both Singer and Arnhart are arguing (I think convincingly) our human natures honed by evolution may do so.

Go here to enjoy the exchange on the social and political implications of evolutionary science.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 15, 2010, 04:24:24 AM
Woof Bigdog,
 Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.

College isn't like a pre-K education where you point to a picture and say "Car.  Can you say car?  Carrrrrr."  College is a place where you go to learn how to decipher, question, apply.  How can one learn the weakness of an opposing argument without hearing it?

And your earlier point about 2+2 equaling 22 is just silly.  There are no respected mathematicians who say something like that.  There are, however, respected judges who use literalism, original intent, plain meaning of the words, foreign jurisprudence, the value of precedent and many other types of constitutional and statutory interpretation.  As an example, in a Con Law class, in which the decisions/opinions of the Supreme Court are being discussed and evaluated, you can't ignore that justices do not simply use the standard that you happen to prefer. 
Title: Second Amendment Rights, Definitive
Post by: prentice crawford on July 15, 2010, 07:46:42 AM
Woof Bigdog,
 Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.

College isn't like a pre-K education where you point to a picture and say "Car.  Can you say car?  Carrrrrr."  College is a place where you go to learn how to decipher, question, apply.  How can one learn the weakness of an opposing argument without hearing it? bigdog

Exactly my point, it can't help but spread the ideas involved and I have no problem with valid arguments but when the so called opposing argument is baseless in fact and those posing the argument do so with a fabricated premise and rest their case on a false body of evidence that misinforms, distorts, and endeavors to hide actual facts, while writing and teaching their ideas and version of rewritten history, with the authority and shroud of legitimate academic work and knowingly do so to further a political agenda to convince future generations of Americans that they don't now, and never did have, a individual right to keep and bear arms, then I call that poison!

And your earlier point about 2+2 equaling 22 is just silly.  There are no respected mathematicians who say something like that.  There are, however, respected judges who use literalism, original intent, plain meaning of the words, foreign jurisprudence, the value of precedent and many other types of constitutional and statutory interpretation.  As an example, in a Con Law class, in which the decisions/opinions of the Supreme Court are being discussed and evaluated, you can't ignore that justices do not simply use the standard that you happen to prefer. bigdog  

 Yes, it is silly and again that is my point. Those that penned the Constitution and the Bill of Rights, those that debated it, ultimately ratified it, and the papers that reported on it made a number of things crystal clear, just as clear as 2+2, and one of those things was that the citizens of the United States have the right to keep and bear arms and that it shall not be infringed. Period. Definitively. With mathematical certainty. No doubt. No deciphering. No weakness. Nothing to be discussed nor evaluated or interpretation needed. That is, until these despicable ideas were intentionally planted to thwart the original intent of the Second Amendment and they have no place, no force of argument in any legitimate text book or class on the Constitution or Bill of Rights. They can argue that in their opinion we shouldn't have the right but they can't say it doesn't exist to begin with, because that is simply a flat out lie!

 "Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people."
                                   editorial, Feb. 20, 1788
                               Pennsylvania Gazette

 "A militia when properly formed are in fact the people themselves and include all men capable of bearing arms. To preserve liberty it is essential that the whole body of people always possess arms. The mind that aims at a select militia must be influenced by a truly anti-republican principle."
                                     Ratification debate 1788
                                  Richard Henry Lee

 "As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment), in their right to keep and bear their private arms."
                                     editorial overview of ratified Bill of Rights, June 18, 1789
                                     Federal Gazette

 "The said Constitution shall be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."
                                     ratification convention 1788
                                    Samuel Adams

 2+2, people. 8-)

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on July 15, 2010, 12:30:03 PM
Backtracking in the thread a bit, I want to comment on some points gone by:

Bigdog wrote: "there may be a self selection problem.  Professors don't make much money, despite the arguments to the contrary.  If may be that conservatives largely take their talents to the private sector, where the pay is better."

I agree with this point.  Not for money alone, but there is an attraction for conservatives to the private sector and for liberals to academia.

"just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom"

In other disciplines such as climate science and economics they certainly seem to. I wonder how Nobel Laureates such as Obama or Krugman could describe the virtues of supply side economics in a classroom while they falsely characterize it publicly. I challenge anyone to find so much as a paragraph written by either of them that describes those arguments accurately or honestly.  Very few of the best political moderators can question without exposing their own view. One firsthand classroom example I experienced was studying economics under the former chief economic adviser to Presidents Kennedy and Johnson.  At the time he was positioning himself to be chief adviser to Ted Kennedy as well, advocating gas rationing and national healthcare in 1980.  He taught and tested only on his view.  He passed out reprints of his WSJ contributions, never opposing views which was the rest of the editorial page.  That may not happen as egregiously in Law but I question how many teachers with very strongly held views can be fair to the other side of an argument.

I wonder how well lecturer Obama presented opposing views on contested constitutional issues.  I question how well someone like Ruth Bader Ginsburg as a lecturer could present the arguments of Thomas on Kelo for example - or vice versa.  Suppose the other side were in attendance, I wonder how they would rate the opponent's explanation of their argument.

As a sample, I wonder how BigDog (or anyone) might frame the pro-DOMA argument (federal defense of marriage act), assuming his personal view is opposite, to give us an idea of how he would frame the argument that the federal government has full constitutional authority to define the meaning of marriage, superseding any states' rights argument...
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on July 15, 2010, 01:48:41 PM
Backtracking in the thread a bit, I want to comment on some points gone by:

Bigdog wrote: "there may be a self selection problem.  Professors don't make much money, despite the arguments to the contrary.  If may be that conservatives largely take their talents to the private sector, where the pay is better."

I agree with this point.  Not for money alone, but there is an attraction for conservatives to the private sector and for liberals to academia.

"just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom"

In other disciplines such as climate science and economics they certainly seem to. I wonder how Nobel Laureates such as Obama or Krugman could describe the virtues of supply side economics in a classroom while they falsely characterize it publicly. I challenge anyone to find so much as a paragraph written by either of them that describes those arguments accurately or honestly.  Very few of the best political moderators can question without exposing their own view. One firsthand classroom example I experienced was studying economics under the former chief economic adviser to Presidents Kennedy and Johnson.  At the time he was positioning himself to be chief adviser to Ted Kennedy as well, advocating gas rationing and national healthcare in 1980.  He taught and tested only on his view.  He passed out reprints of his WSJ contributions, never opposing views which was the rest of the editorial page.  That may not happen as egregiously in Law but I question how many teachers with very strongly held views can be fair to the other side of an argument.

I wonder how well lecturer Obama presented opposing views on contested constitutional issues.  I question how well someone like Ruth Bader Ginsburg as a lecturer could present the arguments of Thomas on Kelo for example - or vice versa.  Suppose the other side were in attendance, I wonder how they would rate the opponent's explanation of their argument.

As a sample, I wonder how BigDog (or anyone) might frame the pro-DOMA argument (federal defense of marriage act), assuming his personal view is opposite, to give us an idea of how he would frame the argument that the federal government has full constitutional authority to define the meaning of marriage, superseding any states' rights argument...

I can only tell you that my students often try to "figure out" my politics only to say at the end of the semester that they have no idea.  

Pro-DOMA: (This is quick, so don't expect anything too high.)  In the 1960's, the federal government decided that it could mandate that states could no longer outlaw or ban interracial marriages.  Why, now, can't the federal govt. BAN same sex marriages?  

Also, professors can assign readings that cover multiple ideological POV.  

It really isn't as hard as you guys make it seem.  
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on July 15, 2010, 02:04:31 PM

Reynolds v. U.S.: 1879 - Congress Strengthens Anti-bigamy Law, The Supreme Court Destroys Mormons' Hopes

Read more: Reynolds v. U.S.: 1879 - Congress Strengthens Anti-bigamy Law, The Supreme Court Destroys Mormons' Hopes, Suggestions For Further Reading
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: prentice crawford on July 15, 2010, 06:02:34 PM
 I mentioned Bellesiles in an earlier post and for those of you that don't know about him and the short love affair he had with the press, news media, academia and the gun rights hating Left, here is one of the many rave reviews by experts that didn't bother to check any facts; and after
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on July 15, 2010, 06:48:44 PM
I was in an interdisciplinary scholars undergrad program at the time Bellesiles' "research" was making news and had one of the faculty on my committee who kept waving the fake probate records in my face. I sure enjoyed it when his lack of documentation got outed.
Title: Gura Goes for NY
Post by: Body-by-Guinness on July 15, 2010, 07:22:08 PM
Alan Gura is at it again:
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: prentice crawford on July 15, 2010, 07:56:23 PM
I was in an interdisciplinary scholars undergrad program at the time Bellesiles' "research" was making news and had one of the faculty on my committee who kept waving the fake probate records in my face. I sure enjoyed it when his lack of documentation got outed.
 Yeah, he over reached and it's a good thing he got caught at it; the problem is that there has been thousands of people like him over the years, and it continues today, they do the same thing he did but they stay below the radar by just placing a tiny drop of a lie here and there throughout their body of work. It's the old death by a thousand cuts strategy.
 I mentioned Bellesiles in an earlier post and for those of you that don't know about him and the short love affair he had with the press, news media, academia and the gun rights hating Left, here is one of the many rave reviews by experts that didn't bother to check any facts; and after

Title: Updated Declaration of Independence
Post by: Crafty_Dog on July 26, 2010, 11:28:18 PM
Title: VA Obamacare motion to dismiss denied
Post by: Crafty_Dog on August 04, 2010, 06:25:11 PM
The Virginia Obamacare Decision
What are the limits of the federal government's power? Surely, no enactment in modern times pushes the boundary further than Obamacare. In denying the Obama administration's motion to dismiss the Commonwealth of Virginia's challenge to the constitutionality of Obamacare, US District Judge Henry Hudson thus correctly recognized that the individual mandate "literally forges new ground and extends Commerce Clause powers beyond its current high water mark." Specifically, the court recognized that there is a critical difference between the federal government regulating "a voluntary decision to perform an act" and mandating "that a person ... perform an involuntary act." Interestingly, the court also invoked the notion of enumerated powers, noting that there is no "specifically articulated constitutional authority" for imposing an individual mandate.

It's very early days. A trial court decision on a motion to dismiss is hardly dispositive of squat. Having said that, however, this opinion sets a very good tone for the lengthy battles to follow.
Title: Coulter
Post by: Crafty_Dog on August 05, 2010, 09:25:34 AM
Although I suspect Coulter is sometimes guilty of writing while intoxicated, this one seems sound to me:

Democrats act as if the right to run across the border when you're 8 1/2 months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.

The louder liberals talk about some ancient constitutional right, the surer you should be that it was invented in the last few decades.

In fact, this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay.

The 14th Amendment was added after the Civil War in order to overrule the Supreme Court's Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves -- many of whom had roots in this country longer than a lot of white people.

The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)

Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it's amazing the drafters even considered the amendment's effect on the children of aliens.

But they did.

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians -- because they were subject to tribal jurisdiction, not U.S. jurisdiction.

For a hundred years, that was how it stood, with only one case adding the caveat that children born to legal permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." (Other than the part about one being lawful and the other not.)

Brennan's authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, the Clement L. Bouve -- the one you've heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge -- just some guy who wrote a book.

So on one hand we have the history, the objective, the author's intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants. On the other hand, we have a random outburst by some guy named Clement -- who, I'm guessing, was too cheap to hire an American housekeeper.

Any half-wit, including Clement L. Bouve, could conjure up a raft of such "plausible distinction(s)" before breakfast. Among them: Legal immigrants have been checked for subversive ties, contagious diseases, and have some qualification to be here other than "lives within walking distance."

But most important, Americans have a right to decide, as the people of other countries do, who becomes a citizen.

Combine Justice Brennan's footnote with America's ludicrously generous welfare policies, and you end up with a bankrupt country.

Consider the story of one family of illegal immigrants described in the Spring 2005 Journal of American Physicians and Surgeons:

"Cristobal Silverio came illegally from Oxtotilan, Mexico, in 1997 and brought his wife Felipa, plus three children aged 19, 12 and 8. Felipa ... gave birth to a new daughter, her anchor baby, named Flor. Flor was premature, spent three months in the neonatal incubator, and cost San Joaquin Hospital more than $300,000. Meanwhile, (Felipa's 19-year-old daughter) Lourdes plus her illegal alien husband produced their own anchor baby, Esmeralda. Grandma Felipa created a second anchor baby, Cristian. ... The two Silverio anchor babies generate $1,000 per month in public welfare funding. Flor gets $600 per month for asthma. Healthy Cristian gets $400. Cristobal and Felipa last year earned $18,000 picking fruit. Flor and Cristian were paid $12,000 for being anchor babies."

In the Silverios' munificent new hometown of Stockton, Calif., 70 percent of the 2,300 babies born in 2003 in the San Joaquin General Hospital were anchor babies. As of this month, Stockton is $23 million in the hole.

It's bad enough to be governed by 5-4 decisions written by liberal judicial activists. In the case of "anchor babies," America is being governed by Brennan's 1982 footnote.

Title: Re: Coulter on anchor babies and the 14th
Post by: DougMacG on August 06, 2010, 07:35:04 AM
I regret to say that Ann Coulter makes more sense on this than our friends here who argued the opposite.  Quotes like this if actual are very persuasive: 

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: ccp on August 06, 2010, 08:15:30 AM
Perhaps I am missing it but every time I watch CNN, who bills it self as non partisan all I ever see is partisinship on this issue.  When they discuss the issue of anchor babies, we see anchors, guests, pundits one after the other say with a shit eating grin after another and snickering that it is clearly in the constitution that the babies of two illegal parents are citizens and end of story.

Then we see over and over the 4 foot tall Guatemalan working in a yard shoveling dirt breaking his back living in a room with only clothes to his name as the example of all illegals and how can anyone with a heart deny this poor man the "right" to be in America and work and struggle and dream for a better life like all of the rest of us who were all from other countries?  How could anyone but a Republican be so heartless.

No where or never have I seen them ever discuss the displacement of American workers (many of whom quite naturally sit back and collect unemployment), try to get disability, etc, discuss the benefits the illegal's children get, schooling, health in ER, free births and child care, food stamps, welfare, medicaid. 

I want to see networks start to hire bilingual illegals for far less wages than these G-D assholes on these stations and make them news anchors.  Then and only then, when it hits them in the wallet will they change their tune. 

Comon Soledad you American hating white hating jerk.  Instead of cherry picking the adorable Latino family why don't you give us the real objective picture about illegals.  And why are we not talking about illegals from all countries rather than making Latinos believe this is all about them. It isn't!!!

Comon you dumb Republican "leaders" what about all the illegals including those who overstay their visas.  Those from Asia, from Europe, From Africa, From the Carribbean.  By keeping silent about this and making it solely a "border" issue you feed the concept that it is about people who look Mexican.
Title: Prop 8 Gay Marriage
Post by: DougMacG on August 06, 2010, 08:28:17 AM
As I understand it a Calif. Federal judge struck down Prop.8 which was the right of the state to define the participants in a marriage.  The judge recognized marriage as a fundamental right and therefore too heavy a burden for any other factor to justify denying anyone that right.

But the fundamental part of marriage is that one man and one woman can make this commitment to become what we call husband and wife.  Anything else is a new right, a new definition, a new tradition.

There was an important point made on another issue on the board about equal circumstance that applies and the entire progressive tax collection systems and entitlement payment systems are built on it, called equal circumstance  One taxpayer is taxed differently on his next dollar earned than another taxpayer. The reason that passes for 'equal protection' is that IF either person were in the other's circumstance, they would be treated the same as the other.

Isn't that EXACTLY the same as a gay person's opportunity to marry.  One gay man has the same right to fall in love and marry one woman and become husband and wife as anyone else does, and receive all the rights, burdens and privileges.. A former governor of New Jersey comes to mind; he had children, filed joint returns, spousal privilege, all of it.  Same with Billie-Jean King, a married woman who happened to be lesbian, and I assume thousands or millions of other people.  They didn't get all they wanted in life out of their marriage; neither do plenty of heteros, but they did have the fundamental right.  Man-woman marriage for a gay person is just as likely and accessible as other areas of established law such as the possibility of an actively practicing physician qualifying for food stamps of a homeless man being levied with a yacht tax.  It is what we call equal protection, different circumstances.

This issue will be settled once and for all just like all the other great divisive issues of our time.  It will come down to what mood Anthony Kennedy is in that day.
Title: Cong. Tom McClintock on anchor babies
Post by: Crafty_Dog on August 27, 2010, 12:01:58 PM
Dear E-Team,

I have been battling the McClatchy newspapers this month over the "anchor baby" crisis in which the babies of illegal immigrants are granted automatic citizenship. Today, eight percent of babies born in the United States fall into this category.  The McClatchy newspapers branded any discussion of reforming this law "racist."  Here's what I wrote in response:

In an editorial last week, the Bee tries to smear the supporters of birthright citizenship reform as "heirs" to white supremacists of the 1920's. To make this outrageous comparison, the editors resort to the tactic of equating legitimate concern over illegal immigration with opposition to all immigration.   

Having constructed this straw man, the Bee then feels free to tar supporters of birthright citizenship reform HHas racists in the mold of Senator James Phelan who sought to ban all legal immigration from Asia. It then falsely insinuates that today's reformers would have opposed the landmark 1898 Supreme Court decision that correctly upheld the birthright citizenship of Wong Kim Ark, the child of legal – repeat, legal – Chinese immigrants and their descendants. 

I challenge the editors to cite one statement that any Congressional advocate of reform has made that even remotely suggests barring legal immigrants to our nation or denying their children all the rights of citizenship.  Indeed, I have extolled the virtues of legal immigration throughout my entire career in public office.

Unlike most nations, our immigration laws were not written to keep people out.  They were written to assure that as immigrants come to America, they come with the intention to become Americans and to fully assimilate into American society by acquiring a common language, a common culture and a common allegiance to American constitutional principles.  Illegal immigration undermines the entire process of legal immigration that makes our nation of immigrants possible.

One cannot support both legal and illegal immigration at the same time. If illegal immigration is to be rewarded with birthright citizenship, public benefits and amnesty, it becomes impossible to maintain our immigration laws and the process of assimilation that they assure.  Indeed, there is no surer way of destroying a nation of immigrants than by Balkanizing them by language, ethnicity, culture and allegiance.

The Pew Center reported this week that eight percent of babies in the United States today are born to illegal aliens and accorded instant citizenship.  The issue is whether the 14th Amendment, a Reconstruction measure to assure citizenship for the children of slaves, should continue to be used to provide automatic citizenship to babies born to parents who, under federal law, are themselves subject to immediate deportation. 

Should an illegal act be rewarded by granting a legal right?  If the answer is "yes," then how does the Bee suggest that we maintain the rule of law at all?  If we stopped enforcing the speed limit and rewarded speeders with automatic license renewal – what would be the point of keeping the signs?

In recent years, the United Kingdom, Australia, Ireland, New Zealand, France and India have all modified their birthright citizenship laws to require that one parent at least be a legal resident in order to confer birthright citizenship.  According to a June 2010 Rasmussen poll, the American people support such a reform by a margin of 58 to 33 percent.  Do the Bee's editors seriously contend that 58 percent of the nation's voters are actually white supremacists?

Abraham Lincoln once observed, "You cannot disprove Euclidian geometry by calling Euclid a liar."  At a time when our nation desperately needs a civil discussion over an issue that has profound implications for the very sovereignty of our nation, it is a shame that the Bee's editorial staff has chosen instead to hurl accusations of racism against those with whom it disagrees.   

Since my response was published, I have received a flood positive emails and phone calls supporting our position that we need to reform birthright citizenship. It is clear that American people are overwhelmingly in favor of our positions.

That is why we are in such a good position to retake the majority in the House in November.

But I still need your help.

My two opponents in November are from the far Left. In fact one is a Green Party member and the other is a Democrat they imported from Florida who is closely tied to the Progressive Democrats of America.
Title: Counter Intuitive Conservatives
Post by: Body-by-Guinness on September 11, 2010, 07:11:17 PM
Commentary: When freeing criminal defendants is conservative
Marie Gryphon
September 08, 2010

Criminal defendants can't get a break from conservative judges, according to conventional wisdom. Former Chief Justice William Rehnquist reinforced the stereotype with his famously inartful remark that a "judge who is a 'strict constructionist' in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs — the latter two groups having been the principal beneficiaries of the Supreme Court's 'broad constructionist' reading of the Constitution." But Rehnquist was speaking specifically of constitutional claims at a time when expansive, policy-driven readings of the Fourth, Fifth and Sixth amendments were, for better or worse, revolutionizing police and courtroom procedures.

Not all criminal cases involve constitutional issues. When a case involves a disagreement about how to interpret a criminal law, a judge who takes a "strict constructionist" or textualist approach to interpreting the law is very likely to side with a criminal defendant. There is nothing inherently unconservative about reversing the conviction of a defendant who has not clearly violated the law. On the contrary, one of the oldest mandates of the common law is to protect the public from arbitrary prosecutions under vague statutes.

The Court's decisions during this past year undermine the common claim that its Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law. In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most "liberal" on the Court: They sided with the criminal defendants in these cases eight out of nine times. The only justice with a more pro-defendant record on these cases last term was John Paul Stevens.

The opinions in these cases demonstrate why Scalia and Roberts, both "textualist" judges, so often side with criminal defendants. Scalia and Roberts take the same literal approach to interpreting federal statutes that they take to interpreting constitutional provisions. In neither case are they inclined to expand the meaning of a provision beyond its clear terms in order to effectuate some overarching policy goal. Although Kennedy is less wedded to a textualist interpretive approach in general, he also prefers to read criminal statutes narrowly.

In Johnson v. U.S., Scalia rejected the government's claim that defendant Curtis Darnell Johnson was subject to an enhanced penalty under the Armed Career Criminal Act (ACCA) after pleading guilty to illegal possession of ammunition. The ACCA makes draconian sentences available to prosecutors if defendants have been convicted of three prior "violent felonies." In an opinion joined by Roberts and Kennedy, Scalia considered Black's Law Dictionary among other sources to determine that Johnson's prior conviction for battery required only "actually and intentionally touching" another person without their consent, and that mere touching was not "physical force" — a required element of a "violent felony" under the ACCA.

In Bloate v. U.S., Roberts, Scalia and Kennedy joined Justice Clarence Thomas' majority opinion holding that the Speedy Trial Act of 1974 required dismissal of the prosecution's case against Taylor James Bloate on federal drug and firearms charges because no criminal case may be delayed by more than 70 days unless the trial judge explicitly finds that further delay would serve the ends of justice. Any other interpretation of the act would render the statutory language concerning the "ends of justice" meaningless in contravention of an important canon of statutory interpretation, the Court held, unmoved by the policy argument offered by the dissent that the requirement would be pointless in practice.

In Dolan v. U.S., Roberts, joined by Scalia and Kennedy, strongly dissented from the Court's decision that a federal judge may order a criminal defendant to pay restitution to a crime victim under the Mandatory Victims Restitution Act of 1996 even after the statute's 90-day deadline had passed. Roberts wrote: "The Court appears to reason that [the act] confers the authority to add a restitution provision for at least 90 days…ut that is not what [it] says. It provides 90 days for a final determination of the victims' losses, not a free pass to impose restitution whenever the trial court gets around to it."

Certainly, the court's so-called "conservative" justices are less likely than their peers to favor criminal defendants in cases concerning constitutional limits on police activity. The Court decided three cases last term about Miranda warnings: Maryland v. Shatzer; Florida v. Powell; and Berghuis v. Smith. In each of these cases, the Court's Republican appointees favored the government's narrower view of the scope of constitutional protection. But criminal cases involving statutory interpretation show that most of these jurists readily side with criminal defendants when careful textual interpretation leads them to do so.

As another Republican-appointed justice, Pierce Butler, wrote for the Court in 1939, "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." By rigorously interpreting the words of Congress in criminal cases, Roberts, Scalia and Kennedy are protecting this important conservative legal principle.

Marie Gryphon is a senior fellow at the Manhattan Institute's Center for Legal Policy.
Title: Libertarian Homicide Investigation
Post by: G M on September 14, 2010, 04:23:43 PM
Ok Det. BBG, here is your case:

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

Ok, so please tell me how you would investigate this case without doing anything you feel to be unconstitutional.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on September 15, 2010, 10:18:54 AM
Meh, not my cup of tea so I'm not gonna flounder around making a fool of myself.

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

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

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

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

This morning I got a Linkedin update--Linkedin is a business contact online service that I got roped into--where it was suggested I invite various, specific Facebook friends to join my Linkedin network. I have my FB account locked down pretty tight, as I do my Linkedin on, yet somehow they had compared who my business contacts were against my FB friends and then filled in the blanks. Small potatoes yes, but it bodes larger things that I will make any sized wager you'd like will someday soon prove antithetical to American freedoms most citizens consider sacrosanct.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 15, 2010, 11:53:19 AM
Well, the point was that today there would be technological elements to the investigation, but much of it would be the same as decades ago. You talk to people, look for witnesses. The husband might be placed at the scene by a cell phone tower ping, or even better by old Mrs. Jones across the street that heard a loud fight from the residence at the estimated time of death.
Title: Constitutional Law, Prop 8 Calif: Equal Protection, if similarly circumstanced?
Post by: DougMacG on September 15, 2010, 01:06:07 PM
Another hot issue I would love to hear Bigdog's take on is Prop. 8 Gay marriage in California.  In that case the judge did strike down the will of the people so I would think the Court will step in or else it becomes settled law by one lower judge.

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

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

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

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

I don't see how the Supreme Court can reject the equal protection - different circumstance argument without undermining our uneven taxation system and a host of other unequally distributed programs.   But it does sounds like a pretty good trade to me.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 15, 2010, 06:53:53 PM
Isn't a core belief of libertarianism personal responsibility? No one makes you join facebook or any other social network. The interwebs is dangerous and all sorts of beasties lurk in it's depths. I assume that I'm always being looked at on the web and act accordingly.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Freki on September 16, 2010, 05:16:47 AM

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

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

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on September 16, 2010, 05:30:56 AM
Isn't a core belief of libertarianism personal responsibility? No one makes you join facebook or any other social network. The interwebs is dangerous and all sorts of beasties lurk in it's depths. I assume that I'm always being looked at on the web and act accordingly.

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

Guess I don't see how the concept of personal responsibility somehow leads to letting folks rummage through your digital dandruff without complaint.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 16, 2010, 05:46:44 AM
Because it's not the same as someone rummaging through your sock drawers in your home. You have a reasonable expectation of privacy in your home. You sure don't in the net.
Title: Petard Perturbations
Post by: Body-by-Guinness on September 21, 2010, 07:15:38 AM
I've been rummaging around my mind for a reply, but it keeps coming up "no sale." No reasonable expectation of privacy in my online banking? In my online purchases? In the sweet nothings I email my wife when out of town? The list could go on for quite some time, and I've little doubt as to how the nation's founders would weigh in.

I'm not sure we can have constructive exchanges about this stuff, GM. It sounds like you favor some sort of Chinese model light when it comes time to monitor the 1s and 0s everyone is tossing about these days. Assuming everything digital is in plain sight and thus monitorable--after the feds have worked long and hard with the telecoms to make sure that is the case--has all sorts of scary implications. The US has one of the largest per capita incarceration rates on the planet; the feds are indicting, prosecuting, and bankrupting people for breaking obscure laws in other countries; the executive branch is headed by a gent who has his DOJ ignore blatant acts of polling place intimidation as his secretary of health warns of dire consequences if insurance companies raise rates, yet have no problem setting precedents that allow the current administration to rummage around everyone's digital underwear drawer? Got a petard? Ready to be hoisted by it? 
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 21, 2010, 07:24:02 AM
Again, the standard is reasonable expectation of privacy. Email, unless it's encrypted is just as private as a postcard. Anyone can read it from place to place. Your bank transactions are hopefully encrypted and require a subpeona or search warrant.
Title: FBI Fibs to Congress
Post by: Body-by-Guinness on September 21, 2010, 07:59:11 AM
Hmm, okay, make that your mantra when they come for you.

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

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

Posted by Julian Sanchez

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

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

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

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

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

I think we’ve had quite enough of that.  Someone at the FBI decided that it was a good idea to lie to Congress in order to cover up improper monitoring of an unpopular political group.  In this case, it was pacifists, but who knows who’ll be next. If brazen lies aren’t punished the one case out of a dozen or a hundred that draw the attention of the overseers, why should they ever bother to observe the rules? So watch the Department of Justice.  If someone is fired over this, maybe we still live in a country governed by the rule of law. If not, they’re convinced we’re so dim and besotted by reruns of Friends that they no longer even feel obliged to put up a good show.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on September 21, 2010, 08:17:22 AM
A postcard is protected by federal law if it sits in your mailbox and would require a search warrant if it sat on your kitchen counter and the authorities were not already in your kitchen, it seems to me.  Email boxes are password protected, an expectation of privacy at least at your end.  At work, the email account, the network and all the hardware may likely be the property of the employer - more like setting your postcard on someone else's counter.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 22, 2010, 07:26:46 PM

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

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

Read more: Mail Cover - Court, Amendment, Held, Regulations, Law, and Postal
Title: Smith v. Maryland, 442 U.S. 735 (1979)
Post by: G M on September 23, 2010, 09:38:45 AM

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

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

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

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information
Title: When did the US become a totalitarian country?
Post by: G M on September 23, 2010, 12:10:58 PM
Hmm, okay, make that your mantra when they come for you.

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

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

Hypochondria is a chronic mental illness in which you fear having an undiagnosed serious or life-threatening disease. Hypochondria is currently considered a psychosomatic disorder, which means it's a psychological disorder with physical symptoms. However, some researchers believe hypochondria is a form of obsessive-compulsive disorder, and its designation may eventually change.
Title: Reeducation in Order?
Post by: Body-by-Guinness on September 23, 2010, 03:28:04 PM
Yes, and ignore the IG report that followed my quote, and all my points that at given times and places--INCLUDING IN THE US--various folks have used questionably obtained information to excuse or fuel all sorts of heinous behavior.

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

I know, the policeman if our friend, there's nothing to see here so we should move along, and only paranoiacs worry that creating the infrastructure that would allow the government to monitor anyone most all the time will be used in a wholesale manner rather than the retail one already well demonstrated. Clearly reeducation is in order, or perhaps the sort of mental health therapies the former Soviet Union use to offer those who objected to the deeply inserted tendrils of the state.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 23, 2010, 04:15:23 PM
As much as our current president and friends might not like it, we still are a nation of laws. Unlike the KGB, Chinese Ministry for State Security or any other real totalitarian entity, the FBI and other federal/state/local entities face legal review of their actions. The agencies face legal liabilities, individual LEOs face both civil and criminal liabilities at both the state and federal levels.

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

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

42 U.S.C. § 1983 : US Code - Section 1983: Civil action for deprivation of rights

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

You've never seen me argue that law enforcement should operate without scrutiny. You don't need re-education, just education on the topic. This is why I bother to drag all the applicable laws and caselaw here.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 23, 2010, 04:39:39 PM

See the accountability?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on September 23, 2010, 05:52:21 PM
Again, I'm not arguing intention, I'm arguing capability, with current capabilities being so vast few can wrap their heads around them. Not sure how it's 'sposed to be a comfort that Mao, Stalin, Hitler, Pol Pot, et al did what they did without these sorts of resources. These kinds of capabilities make a totalitarian's job easier, yes?

If arguing for transparency and accountability makes me a neo-Luddite then I guess I'm guilty as charged and a lot of dictionaries need to update the meaning of that term.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on September 23, 2010, 06:06:27 PM
History shows that totalitarians do not need technology to do their worst. Does technology potentially make a totalitarian state stronger? Maybe. Technology is a double edged sword. Despite the great firewall of China, technology has done much to empower the Chinese people.

Bad guys make use of technology. It would be negligent for law enforcement not to move to counter that, while using the limits set by the applicable laws and rulings by the courts.
Title: Rampant Prosecutorial Misconduct, I
Post by: Body-by-Guinness on September 24, 2010, 10:30:41 AM
Prosecutors' conduct can tip justice scales

By Rhyne Piggott, USA TODAY

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

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

-Robert Berry,
Nino Lyons' attorney

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

-Laurie Levenson,
Loyola Law School professor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pattern of 'glaring misconduct'

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trial, jail and vindication

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

'The scary part'

Title: Rampant Prosecutorial Misconduct, II
Post by: Body-by-Guinness on September 24, 2010, 10:31:05 AM
Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons' attorneys discovered.

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

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

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

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

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

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

Deliberate violations

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

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

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

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

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

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

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

They remain federal prosecutors.

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

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

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

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

Pressures on prosecutors

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

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

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

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

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

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

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

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

'Real sloppy and lazy'

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

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

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

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

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

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

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

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

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

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

McCoy reported from New York. Contributing: Rhyne Piggott.
Title: Lawless Legislators: The Federal Rupture of the Rule of Law
Post by: G M on September 24, 2010, 11:05:48 AM

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

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

    James Madison, Federalist Paper No. 51 (1788)

The Rule of Lawlessness

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

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

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

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

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

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

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

This is the rule of men — and not good men at that — run amok.
Title: "It's a Political Question," Nothing to See Here
Post by: Body-by-Guinness on October 13, 2010, 05:58:47 PM
Reason Magazine

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

Jacob Sullum | October 13, 2010

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

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

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

The government's motion to dismiss is here (PDF). The CCR/ACLU reply brief is here (PDF). Last week David Harsanyi criticized Obama's use of the state secrets privilege to bar litigation over targeted killings. Last month I discussed Obama's use of the privilege to block lawsuits by torture victims.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 13, 2010, 06:18:04 PM
So, should we have to have a trial before we can send drones out to zap a haji? Should there have been a due process requirement before we shot down Yamamoto?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on October 13, 2010, 06:39:02 PM
I wasn't aware Yamamoto was an American citizen.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 13, 2010, 06:58:18 PM
We had American citizens fighting for the Axis powers. Should they have a different status than anyone else were were fighting?

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

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

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

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

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

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

On November 3, 2002, an unmanned CIA Predator drone flying high above the Yemeni desert unleashed a Hellfire missile at a car that was carrying Kamal Derwish, instantly killing him and four others. Also among the dead was Salim Sinan al Harethi (a.k.a. Abu Ali), the suspected mastermind of the U.S.S. Cole attack.
Title: Divide by Zero
Post by: Body-by-Guinness on October 13, 2010, 07:22:55 PM
Noting how the Chamber of Commerce, the Tea Party, and so on are being vilified by the present administration, do we really want to give the President the power to kill anyone he declares enemy of the state without any sort of review allowed?

I would imagine this would be a bit of a conundrum for you on the order of "can God make a rock so big that He Himself can't move it?" Should an administration you hold in contempt be allowed to summarily execute those who display the ultimate form of contempt toward it? Let the dividing by zero begin.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 13, 2010, 07:34:24 PM
Let me know when Obama starts sending drones after Sarah Palin or Glenn Beck.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on October 13, 2010, 07:47:13 PM
Kinda hoping to avoid that by imposing checks against summary executions before Barry starts going all Putin on us.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 13, 2010, 07:48:39 PM
  Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 13, 2010, 07:51:29 PM
Do you seriously think O-Barry would use the US military to target political opposition? If he was, do you think some sort of law would stop him?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on October 13, 2010, 08:00:51 PM
Isn't that exactly what he's doing every time he launches a predator at an American citizen said to be playing pattycake with the Taliban?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 13, 2010, 08:07:15 PM
No. There is a huge difference between someone engaging in war against the US and engaging in constitutionally protected speech.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on October 13, 2010, 10:42:06 PM
You mean the war against man made disasters?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on October 14, 2010, 06:10:59 AM
No. There is a huge difference between someone engaging in war against the US and engaging in constitutionally protected speech.

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

The dude already launches unprincipled verbal attacks on a regular basis that the media frequently averts its eyes from, but you want him to be able to do the same with drones sans any modicum of oversight whatsoever? Sounds like the height of folly to me.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 14, 2010, 07:37:33 AM
I have huge issues with this administration. In a sane world, Obama should only see the inside of the white house as part of a public tour. However, he is the elected president and thus has the lawful authority of that position as commander in chief of the US military.

You can have any reservations you want about his decisionmaking and ethics, of lack thereof, but I see no valid claim regarding the use of the military to make war on those who have made war on us. Were Barry to have airstrikes called in on Tea Party gatherings, then you would have a point.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Body-by-Guinness on October 14, 2010, 08:10:32 AM
And who decides who "makes war on us" and who reviews that decision? When you are spreading citizen's thin in distant lands, some form of accountability would seem in order.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on October 14, 2010, 08:42:33 AM
Although not as constitutionally pure as a declaration of war, we have the congressional authorization to use force.

    Authorization for Use of Military Force
    September 18, 2001

    Public Law 107-40 [S. J. RES. 23]

    107th CONGRESS


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

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

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

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

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

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

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


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


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

          (b) War Powers Resolution Requirements-

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

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

    Approved September 18, 2001.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on October 14, 2010, 09:20:46 AM
Important in these matters to not weaken the Presidency just because we have a bad one.  The pre-oversight is the congressional authorization.  The ongoing oversight may be the congressional appropriations that fund operations.  Also we can have congressional review of actions taken by our military to expose past actions and influence the future ones, but still the Commander makes the real-time decision in war, not a committee.  The ultimate oversight is that new elections here are always coming.

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

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

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

There are competing philosophies to defense and the war on terror (human caused disasters) to ague elsewhere and settle in the elections.  There is surrender entirely and unilaterally as many far leftists prefer.  There is the so-called Fortress-America view that some on the far right would like, meaning defend strongly here but end the missions outside our borders, and there is take the battle to the enemy.  Even the far leftist Obama believed war in Afghanistan is necessary, which should mean strikes anywhere harboring terrorists who threaten America are necessary too, until another viewpoint wins over at least one branch.
Title: What Liberal Pundits Forgot
Post by: Body-by-Guinness on October 17, 2010, 11:40:43 AM
Why Liberals Don't Get the Tea Party Movement
Our universities haven't taught much political history for decades. No wonder so many progressives have disdain for the principles that animated the Federalist debates.

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

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

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

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

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Washington Post Columnist E.J. Dionne

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Berkowitz is a senior fellow at Stanford's Hoover Institution.
Title: Endowed by whom? Extenze?
Post by: Crafty_Dog on October 28, 2010, 02:24:15 PM
Alexander's Essay -- October 28, 2010
On the Web:
Printer Friendly:
PDF Version:


Rights Endowed by Whom?


What is really at stake in this election?

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

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

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

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

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

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

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

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

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

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

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

Mr. Gibbs' assurances notwithstanding, Obama's subtle but telling omissions expose
the underbelly of the political beast that is intent on devouring Essential Liberty
( ) and replacing it with the rule of men.

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

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

It has drawn millions of Americans to the frontlines of the eternal war for Liberty
and Rule of Law
), as enshrined in our national Constitution. Still, this midterm election cycle is
different than the knee-jerk response to Bill Clinton that seated a Republican
majority back in 1994.

There is a Great Awakening across our nation, one being spearheaded by Tea Party
Patriots ( ) who
are armed with, among other things, the right tools
( ) to articulate the difference between
Rule of Law and rule of men, and who are willing to passionately fight for the
former over the latter.

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

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

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

I know that you have "pledged your sacred honor
)" for the defense of Liberty. I beseech you to help us muster
( ) millions of additional Patriots to the frontlines
for the battle ahead.

Semper Vigilo, Fortis, Paratus et Fidelis!
Mark Alexander
Publisher, The Patriot Post ( )



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Title: Field Day
Post by: Body-by-Guinness on November 05, 2010, 11:24:13 AM
Happy birthday, Stephen J. Field!
Today is the birthday of one of the great figures in the history of American liberty—Stephen Johnson Field, who was born on this day in 1816.

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

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

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

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

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

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

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

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

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

For more on this remarkable figure, check out Paul Kens’ book Stephen Field: Shaping Liberty from The Gold Rush to The Gilded Age, or Carl Brent Swisher’s book Stephen Field: Craftsman of The Law. Field also wrote a memoir of his early days in California. And not long ago I visited his gravesite.
Title: Abolish the 17th
Post by: Body-by-Guinness on November 11, 2010, 11:44:27 AM
Repeal the Seventeenth Amendment
From the November 15, 2010, issue of NR

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

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

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

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

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

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

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

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

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

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

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

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

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

—Mr. Zywicki is a George Mason University Foundation professor of law and a senior scholar of the Mercatus Center. He has written several law-review articles examining the history and impact of the Seventeenth Amendment. This article first appeared in the November 15, 2010, issue of National Review.
Title: Breyer on Second Amendment
Post by: Crafty_Dog on December 12, 2010, 07:16:49 PM
Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

Published December 12, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

"We're acting as judges. If we're going to decide everything on the basis of history -- by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns?" he asked. "Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun."
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on December 16, 2010, 03:01:39 AM
Health Suits Stir Concerns on Court Partisanship

Representative Pete Stark, a California Democrat who leads the Ways and Means subcommittee on health, added, “Apparently Republicans are now for judicial activism after they were against it.”
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on December 16, 2010, 03:18:19 AM
"Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy." From DougMacG, in a different thread

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

Some examples:

Linda Greenhouse's "Is the 'Kennedy Court' Over?" which can be found here:

Frank Colucci's Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty reviewed here:

Helen Knowles' The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty reviewed here:

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


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


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


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


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

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


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


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


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


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


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


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


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


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



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




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


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




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


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


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




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


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

Title: Issues in the American Creed: A moderate defender of individual liberties
Post by: DougMacG on December 16, 2010, 11:01:40 AM
"“Apparently Republicans are now for judicial activism after they were against it.”"

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

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

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

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

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

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

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

In the meantime, someone please tell me what is wrong with having the 2/3rds and 3/4th majorities required to amend the constitution to grant the federal government a new power - do so - before exercising that power against unwilling Americans.
Title: Sixth Circuit Rules that E-Mail Protected by the Fourth Amendment Warrant Requir
Post by: G M on December 16, 2010, 11:32:27 AM

Sixth Circuit Rules that E-Mail Protected by the Fourth Amendment Warrant Requirement
Title: Pravda on the Hudson: Justice Scalia and the Tea Party-- oy vey!
Post by: Crafty_Dog on December 19, 2010, 10:03:03 AM

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

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

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

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

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

By presiding over this seminar, Justice Scalia would provide strong reasons to doubt his impartiality when he ruled later on any topic discussed there. He can best convey his commitment to the importance of his independence, and the court’s, by deciding it would be best not to attend.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 19, 2010, 10:45:06 AM
ACLU 2008 Membership Conference


Sunday, June 8th 

2 PM  Registration Opens

3 PM  Youth reception

3:30 PM LGBT reception

            5 PM Opening Plenary: “Looking Ahead: Political Realities of a Post-Bush America” Glenn Greenwald, Arianna Huffington, Rachel Maddow

            6:30 PM Dinner 

            7:30 PM Comedy by Judy Gold

            8 PM “Rights, Camera, Action”    Alex Gibney, Ariel Dorfman, Johanna Blakley

            Monday, June 9th 

            8 AM “Reflections on a Post 9/11 World” Keynote address by Anthony Romero, ACLU Executive Director

            9:15 AM “Principled and Proud: Standing Up for Core Values”

            10:30 AM Workshops

            12:30 PM “The War on Terror: Protecting Rights and Liberties Beyond Our Border”

            Justice Arthur Chaskalson, John Hutson, reading by Ariel Dorfman

            2:30-4:30 Workshops

            6:30-9 PM ACLU Gala

            Tuesday, June 10th 

            8 AM Breakfast Plenary: “The Hero Next Door: Challenging Abuse of Power in the Neighborhood”   

            10:15 AM Workshops

            12:30 PM Closing Plenary Lunch: “Our Lady Liberty: Celebrating Nadine Strossen” 

            Supreme Court Justice Ruth Bader Ginsburg, Supreme Court Justice David Souter, Supreme Court Justice Antonin Scalia, Kathleen Sullivan, Rev. Barry Lynn, Aryeh Neier, Norman Dorsen – with a special performance by musician John Hiatt

            2-5 PM Hill Visits

Don’t miss exciting workshops on a wide variety of civil liberties issues including: racial justice and affirmative action, women’s rights, technology and liberty, LGBT issues, reproductive freedom, youth engagement, immigrants’ rights and government intrusion into private matters. Plus trainings for Hill Visits will be held throughout the conference.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on December 19, 2010, 01:37:24 PM
I thought the ACLU conference opened with the Pledge of Allegiance ... to the U.N.

I thought the organizing idea of the tea party, 1773 or 2010, was a return to founding principles.  Who better than Justice Antonin Scalia (or any of 8 other justices) to speak?  Just like the tea party, they have it in their job description (I thought) to return us to our founding principles.

Problem with Pravda / NY Times is that they were told the tea party meant something else - starve the poor, return blacks to slavery, make gays learn hetero, and kick Grannny off her meds - that kind of thing.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 19, 2010, 01:57:54 PM

Well that certainly makes for a pithy rejoinder to the POTH claptrap!
Title: Commerce Clause
Post by: Crafty_Dog on December 20, 2010, 09:04:55 AM
"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison

Title: Repeal Amendment
Post by: Crafty_Dog on December 20, 2010, 09:49:20 AM
second post of the morning:


The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.

Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.
The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.

Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.

Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago — but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.

The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.

Tea Party groups and candidates have pushed for a repeal of the 17th Amendment, which took the power to elect United States senators out of the hands of state legislatures. And potential presidential candidates like Mitt Romney and Sarah Palin have tried to appeal to anger at Washington by talking about the importance of the 10th Amendment, which reserves for states any powers not explicitly granted to the federal government in the Constitution.

“Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives,” Mr. Cantor said this month. “Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto bailouts have threatened the very core of the American free market. The repeal amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach and get the government working for the people again, not the other way around.”

Randy E. Barnett, a law professor at Georgetown who helped draft the amendment, argued that it stood a better chance than others that have failed to win ratification. “This is something state legislatures have an interest in pursuing,” he said, “because it helps them fend off federal encroachment and gives them a seat at the table when Congress is proposing what to do.”

Professor Barnett, considered by many scholars to be the intellectual godfather of the argument that the health law is unconstitutional, first proposed the repeal amendment in a column published by in 2009.

Tea Party groups in Virginia contacted him. Virginia’s governor, attorney general and speaker of the House, all Republicans, then expressed their support. The speaker, William J. Howell, joined Professor Barnett in an op-ed article proposing the amendment in The Wall Street Journal in September.

Virginia was a particularly ripe place to start the argument. The attorney general, Kenneth T. Cuccinelli II, was among the first attorneys general to try to overturn the federal health care law, filing a lawsuit minutes after President Obama signed the measure last spring.

Mr. Cuccinelli argued that the federal provision establishing a health insurance mandate was against a law the legislature had recently passed decreeing that no resident could be required to have health insurance. The judge who declared the mandate unconstitutional last week was ruling in that case.

This month, Mr. Cuccinelli wrote to the attorneys general of every state for their support of the repeal amendment.

The measure was introduced in the House by Representative Rob Bishop, Republican of Utah, who was a founder of the Western States Coalition, which advocates states’ rights.

Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence.

“There’s not the slightest chance it would get through Congress” or be ratified by the states, he said. “You can bet the ranch that there are enough state legislators in the large states who will not consider it a good idea to reinforce the power of small parochial rural states in which most Americans do not live.”

Even if it were approved, it would be extremely unlikely to have any practical effect, Professor Levinson said. “Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states,” he said.

Marianne Moran, a lawyer in Florida who runs, said that legislative leaders in Florida, Georgia, Indiana, Iowa, Minnesota, Missouri, Montana, New Jersey, South Carolina, Texas and Utah, as well as Virginia, were backing the amendment.

“Considering we’ve had 12 states get on board in the last two or three months that we’ve been pushing this, I think we’re getting some speed,” she said. “No amendment has ever been ratified without a broad national consensus — it’s an uphill battle — but we’ve done it 27 times as a country, and I think we can get enough states to agree.”

Proponents say their effort is not directed at any one law or set of laws. “Our desire is to have it in place so we can repeal as things come up,” Ms. Moran said. “What we’re trying to do is to draw a line in the sand saying the federal government has gone too far.”
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 20, 2010, 09:20:51 PM

"Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence."

Yes, we are much better off with a few large cities on either coast having disproportionate influence on the country.  :roll:
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: JDN on December 20, 2010, 09:43:54 PM
Those "few large cities on either coast having disproportionate influence on the country"   :?

Disproportionate?  What happened to one man/woman one vote concept?  Sounds "proportional" to me...

Or are cows now going to vote in TX?

If you are not happy with Congress, then vote them out.  There was a major cleaning this last election.
The system seems to work pretty well...
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on December 21, 2010, 04:13:18 AM
Sandy Levinson is an extremely influential constitutional scholar.  Some of his more interesting work deals with what he calls "constitutional stupidities."  Here is one of his articles:
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: DougMacG on December 21, 2010, 10:59:54 AM
I enjoyed the Levinson article though I see it differently.

The theme seems to be the disproportionality aka checks and balances(?).Every few election cycles there seems to be major talk (mostly out of New York and California) to end the electoral college and elect the President by direct popular vote.  There is a fear that the one who wins the popular vote (like Al Gore) may not win in the electoral college.  Like saying the football team with the best time of possession or total yards needs to win even though the rules say we only count points on the board.  Regardless of the merits I always laugh it off because all it will to take to change that is to ask more than half the states to voluntarily give up their 'disproportional' power.  Same argument would go for the senate.  Why abandon the electoral college when, until Levinson(?), I never hear a proposal to end the Senate and go to a strictly proportional (unicameral?) legislative branch.  I have never found the House to be a better governing body than the Senate and don't find the argument that a proportional body would not have confirmed to Clarence Thomas to the Supreme Court to be at all helpful.  

The details of the 12th amendment and the story of 1824 are both quite interesting.  Maybe electoral tiebreakers are quirky or unfair, but then it reinforces something I have come to know since Gore-Bush Florida and the crazy Al Franken recount here: margin of victory matters.  A party or potential coalition can't run 3 candidates or be still fighting amongst themselves on election day and expect their views to prevail.  The Gore Bush contest in Florida mattered because the country was also evenly divided across the other 49 states.  Even if that had ended in a tie to be decided in the House of Representatives with each state getting just one vote, that would only happen after each candidate had every opportunity to win outright in the conventional manner.  Because margin of victory matters, every vote really matters.  I didn't use to know that.  

Levinson alleges (if I read him correctly) one sign of the constitutional stupidity is that mountain states, sparsely populated but fully represented in the Senate, take in far more federal funding than they pay in.  I assume that includes Alaska with their majestic mountains and notoriety for bridges and spending to nowhere.  

I would reply emphatically that those spending bills originate in the fully proportional House of Representatives and end with the mostly proportional chief executive.  The remedy is easily available within the current framework: STOP DOING THAT. Like the cornhusker kickback to bring us healthcare, draw up a bill we honestly support instead of buying off small state Senators. We don't want coercion by the majority or from the east or west coast anymore than we wanted it from the King.  What we want is limited government and consent of the governed.

Ideas like life, liberty and pursuit of happiness were also Jeffersonian.

There is a longer story in these states in my opinion.  The federal government owns the beautiful forests at the Top of the Rockies and a majority of the land in many regions of the west.  Like the Clinton takeover of a coal region, Grand Staircase - Escalante in Utah, I don't think these federal ownerships were the choice of the state or the people in and around the land.  The federal government after the takeover chooses to leave resources in the ground, restricts what Utah or Alaska can do for revenues, operates its own land at a loss, while keeping industrious, private sector, taxpaying Americans from building and living there.  (Then complain about the loss.) That is a choice that comes out of places like New York, Washington, California etc. IMO, not so much from the states affected.  In the Boundary Waters of Minnesota - Superior National Forest , not just non-motorized and very limited access, it is illegal to operate a sailboat on a lake or construct a canoe rest on a portage for fear of ... damage to the environment?  Separate from the merits, these are not laws that are set by the locals nor are they laws that lead to bringing in revenues or covering the federal operating costs of a million acre park, as an example.

Life tenure of Federal judges is easily amended because it doesn't a have a state against state component to it.  Supreme Court Justices or any federal judgeship could be limited to one 20 year term or any other number as easy as passing the 22nd amendment limiting the President to two terms  - if that is what people want.  It is not a structural problem in the constitution, IMO.

The 3 examples of amendments failing, balanced budget, flag burning and equal gender rights were all (well intended, but) flawed proposals IMO. There are amendments now I would support that also lack the votes.  I noted recently that proponents of granting the federal government new powers never first seek to amend the constitution.  That is not because of no constitutional need IMO; it is because they know they lack the votes, and then proceed with the legislation anyway.

Constitutional conventions: beware, IMO.  These are for those like this author/scholar who want major changes and you cannot predict the result when you call one.  These are not for those of us who 'venerate' the original document.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 24, 2010, 07:22:18 AM
Finally I just finished the Levison article.  Good to re-examine one's precepts from time to time, but I come down on the particulars pretty much as Doug does.  I would add that we are averaging about one amendment every ten years which counters the notion that our C. is too hard to amend, and that we have the world's longest running constitutional republic.
Title: Issues in Constitutional Law: Positive Rights vs. Negative Rights
Post by: DougMacG on December 24, 2010, 09:11:05 AM
Is there a constitutional right of having someone provide services to you?  If it is a good idea that everyone have a right to free this or affordable that, is that right already in the constitution or is that a change requiring amendment?  Does congress have the power to compel you to buy a private contract?  Is it an unenumerated power?
Obamacare and the risk of ‘positive rights’
The Kansas City Star

Last week’s court decision striking down the linchpin provision of the health care bill is a reminder that what’s at stake is larger than the future of Obamacare. If this law passes constitutional muster, the question is whether the federal government can be constrained by any limits at all.

At issue is the personal mandate, the part of the law that says everyone must buy health insurance or pay a penalty. The implications were aptly captured by U.S. District Judge Henry Hudson, ruling in Virginia vs. Sebelius — one of several lawsuits challenging Obamacare.

Two other federal judges have upheld the personal mandate, but Hudson saw the law differently. He pointed out that neither the Supreme Court nor any federal court of appeals has held that Congress’ power to regulate commerce means people can be compelled to buy a product from a private company.

If that provision is upheld, the implications are deeply troubling.

Up to now, defenders of the health care law have airily dismissed such concerns. House Speaker Nancy Pelosi, asked to name the constitutional provision on which the personal mandate was based, famously replied in an outraged tone: “Are you serious? Are you serious?”

During the health care debate, it was common to hear people piously assert that health care should be a right, perhaps unaware of the full implications. The ongoing strikes and riots in Europe, however, represent the long-term risks of the progressive vision, in which government-delivered social benefits are portrayed as personal rights.

No wonder they’re rioting in Europe. They believe their personal rights are being violated by budget cuts brought on by the sovereign debt crisis.

Government benefits expressed in this way are known to political scientists as positive rights, which differ from the negative rights with which we’re more familiar. Negative rights generally describe things the government cannot do — take your stuff without due process, stifle your right to express your point of view, lock you up without cause, etc.

Positive rights describe things the government says it will do for you. A good example was the Second Bill of Rights pushed by President Roosevelt. Everyone, he said, should have the right “to a useful and remunerative job … to earn enough to provide adequate food and clothing … to adequate medical care … to a good education” and more.

Worthy goals, all. Who’s against such things?

Certainly a highly developed economy should not be without social welfare programs — pensions and health care for seniors, aid to the indigent and the like. The problem is that elevating benefits to the level of rights confers an unlimited grant of power to the government. In the legislative process, laudable sentiments too often emerge as programs with unconstrained costs — or, in the case of the personal mandate in Obamacare, policies that rely on coercion.

As federal lawyers told Judge Hudson, the personal insurance requirement is the “vital kinetic link that animates Congress’s overall regulatory reform of interstate health care.”

From government’s point of view, positive rights are marching orders. Heaven and earth must be moved to deliver the promises. The state grows rapidly and ultimately it outruns the capacity of the tax base to pay for it all, endangering the financial security of everyone.

Thirty years ago, Portugal’s government cost its taxpayers about 20 percent of GDP. Then a new constitution was written, chock full of positive rights — the right to housing, education, health, social security. The size of government doubled. Portugal’s borrowing costs, like that of Greece and Ireland, have ballooned.

It’s no coincidence that those who believe health care is a “right” were, like Pelosi, initially flummoxed by the notion that a serious constitutional challenge was even possible. Who could worry about legal niceties when the noble goal of universal health care is within reach?

Once upon a time, Barack Obama seemed to understand the kind of opposition a personal mandate would generate. That’s why when he ran for president, he was against it — and criticized Hillary Clinton for proposing such a thing.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 24, 2010, 09:16:25 AM
Can congress mandate you get a haircut, hippie?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on December 24, 2010, 10:50:44 AM
Uhhh , , , at whom is that directed GM?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on December 24, 2010, 10:55:16 AM
Just a joking reference to the federal healthcare mandate. Could congress pass a law requiring every male in the US to purchase a weekly haircut? Hey, good grooming is important!
Title: WSJ: Frankenstein Health Care
Post by: Crafty_Dog on December 24, 2010, 10:00:51 PM
The historians will long be fighting over the legislative legacy of the 111th Congress. As to its legal legacy, the only real question is whether this just-finished Democratic Congress was the most unserious in decades, or the most unserious in history.

That much is clear from the recent ObamaCare court proceedings. Federal Judge Henry Hudson, responding to a lawsuit by the state of Virginia, last week struck down the core of the law, the individual mandate. His decision came the same week that a coalition of 20 states presented oral arguments against the health law in front of Florida federal Judge Roger Vinson. In October, Judge Vinson ruled against the Obama Justice Department's motion to dismiss the states' lawsuit.

The law professors and think-tankers and media folk who initially ridiculed these lawsuits have now had to dream up sinister reasons for why they are succeeding. Judges Hudson and Vinson, we are told, were both appointed by Republicans and obviously can't be trusted to fairly interpret the law. Some commentators have gone further, suggesting that we are witnessing a cabal of right-wing activists, lawyers and judges conspiring to kill not just ObamaCare, but the entire New Deal. If only.

What the observers seem not to have done is read the briefs, arguments or rulings. Had they done so, they'd see a far simpler explanation for what's going on: Congress earlier this year punched through audacious yet unvetted health legislation, a slapdash political product that is now proving to be an historic embarrassment in its legal shoddiness. The Justice Department is in fact having to play games to defend it, which has only further provoked the courts.

And really, is that such a surprise? The Patient Protection and Affordable Care Act is one of the bigger, more complex pieces of legislation in U.S. history. Yet Democrats never gave it the respect it deserved.

View Full Image

Chad Crowe
 .Look at any other consequential piece of legislation, and the record is brimming with sober congressional investigations into its legal merits and ramifications. ObamaCare? It was a largely unread, 2,700-page fiend—crafted in secret, fed on deal-making, birthed on late-night votes. The Senate and House judiciary committees didn't hold hearings. The record is bereft of letters from congressional chairmen requesting Justice Department legal analyses of the bill. Senate Finance Chairman Max Baucus actually ruled out of order an amendment that would have required expedited judicial review of the individual mandate. Asked about the bill's constitutionality, House Speaker Nancy Pelosi's only retort was: "Are you serious?"

The result is a bill that is "in its design, the most profoundly unconstitutional statute in American history; in its execution, one of the most incompetent ones," says David Rivkin, the lawyer who represents the 20 state plaintiffs in the Florida suit. The best example is the individual mandate, the requirement that all Americans buy insurance or pay a penalty.

Democrats' first drafts of ObamaCare all decisively called this penalty a "tax." Legally, that made sense; few dispute Congress's authority to tax. But as the unpopularity of the bill grew, fewer Democrats wanted to vote for a "tax," and President Obama didn't want to own one.

So Democrats went to plan B. That was to make up an entirely new legal theory—to wit, that the federal government is allowed, under the Commerce Clause, to penalize Americans who do not take part in a specific economic activity (buying insurance).

Put another way, in order to avoid the political inconvenience of a "tax," Democrats based the very core of their bill on a new and untested legal premise—one that is a far bigger affront to the Constitution than New Deal legislation. That's why Judge Hudson struck it down. And since Congress adopted this theory sloppily, in response to political pressure, it has left a record that is killing the Justice Department in court.

Knowing how audacious the commerce-clause theory is, Justice has been trying to argue that the penalty is, in fact . . . a tax. This has only annoyed Judge Vinson, who is well aware of the history, and in fact rapped the Justice Department for the bait-and-switch.

"Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing," Judge Vinson wrote in October, "after which the defenders of that legislation take an 'Alice-in-Wonderland' tack and argue in court that Congress really meant something else entirely." Ouch.

And yet the Justice Department has continued to put forward wild theories in court—about the Commerce Clause, about the Necessary and Proper Clause—that have no basis in the statutory language of ObamaCare. And it is now playing games with the appeal of Judge Hudson's ruling, arguing against having it go straight to the Supreme Court, where the nation could get some quick clarity. The administration believes its best shot is to drag out the litigation, and hope that time pressures the courts to leave the law alone.

But what else can the Justice Department do? It's stuck defending a steaming pile of a statute. This is the 111th Congress's legacy, one that will last long after its 535 members finish their term.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on December 30, 2010, 04:56:45 AM

Humanoid Rights
The ACLU looks to science fiction to prepare for future threats to civil liberties

A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.

As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."

The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.

Title: Scalia interview
Post by: bigdog on January 03, 2011, 06:02:34 PM
Scalia interview:
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: G M on January 03, 2011, 06:44:10 PM

Humanoid Rights
The ACLU looks to science fiction to prepare for future threats to civil liberties

A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.

As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."

The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.

So, does the ACLU think a human fetus has more or less rights than a clone?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on January 04, 2011, 03:37:49 PM
That is a good question, GM.  I don't claim to have any information on the ACLU decision making process, but seemingly the answer is yes.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on January 04, 2011, 03:40:31 PM
I guess this goes here:

This a link to National Center for State Courts.  I haven't delved too deeply, but it looks interesting.
Title: Honor your oath!
Post by: Crafty_Dog on January 06, 2011, 10:01:21 AM
Alexander's Essay – January 6, 2011

Mr. Boehner, et al., Honor Your Oath!
"If congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison

The U.S. ConstitutionThe new Speaker of the House, John Boehner, took charge of a Republican majority (242-193) Wednesday, proclaiming, "I stand today in awe of our great nation, humbled by the opportunity to defend the Constitution and serve the American people as Speaker of the House. We must restore the House as an open institution that listens to the people and does their will. We must end D.C. rituals that have made it easy to dodge tough decisions, then make the choices necessary to return our economy to prosperity."

For the record, Mr. Boehner, the first obligation of every member of Congress is to defend the Constitution, which authorizes the House to do the will of the people only to the extent that it comports with the plain language of our Constitution. The current state of the central government, bloated to the point of implosion, is the direct result of political machinations doing the bidding of special interest groups, to the great detriment of our Constitution and the Rule of Law it enshrines.

Our Constitution specifies, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..."

Speaker Boehner and the other 434 Members of the House took this oath in accordance with Article VI, clause 3 of our Constitution: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

While every member of the House and Senate should be bound by their sacred honor to "support and defend" our Constitution, most returning members have dishonored their oath willfully and repeatedly.

There is good news, however. The once dwindling ranks of steadfast conservatives in Congress -- those who have honored their oaths in years prior -- have been greatly bolstered in the most recent election cycle by dozens of newly elected representatives and senators, who, I assure you, will abide by their oaths, and do so vociferously.

While it will certainly take many more election cycles to restore constitutional Rule of Law, the grassroots "Tea Party" movement has changed, and will continue to change, the political composition of the Executive, Legislative and Judicial branches of our government. It will do so by encroachment, the steady replacement of those who have forsaken their oath with those who will honor their oath to support our Constitution.

Mr. Boehner's first order was to require the 112th Congress to open its proceedings with a full reading of our Constitution. While all leftists and most centrists take this as symbolic only, no member of the House of Representatives can now say that they have not, at the least, heard every word of the Constitution of the United States of America. Gloriously, it also sets a firm foundation for the upcoming session and a yardstick by which we can measure Republican leadership.

Of course, Democrats have strenuously objected to the notion that constitutional authority limits the role of the central government, and have done so with great resolve.

When asked by a reporter in 2009 about constitutional authority for the central government's takeover of the U.S. health care system, former House Speaker Nancy Pelosi responded, "Are you serious? Are you serious?" When the reporter persisted, Pelosi moved on to another question while her press spokesman said, "You can put this on the record: That is not a serious question. That is not a serious question."

Democrat Patrick Leahy, then-Chairman of the Senate Judiciary Committee (where Rule of Law should prevail), added, "We have plenty of authority. ... I mean, there's no question there's authority. Nobody questions that."

Pelosi and Leahy believe they have unbridled authority because they subscribe to the so-called "living constitution" which, as Thomas Jefferson warned, has become "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."

Some ranking Democrats were a bit more brazen. Former Majority Whip James Clyburn (D-SC) proclaimed, "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." California Rep. Pete Stark added, "The federal government can, yes, do most anything in this country."

Well, folks, there's a new sheriff in town, and his posse is prepared to ask a lot of questions about constitutional authority for congressional legislation, and hold the line.

By opening the 112th Congress with the Constitution reading, perhaps those members who shun constitutional constraints will now pay more special attention to Article I, Section 2, which specifies, "All legislative powers herein granted [emphasis added] shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives."

They should then pay close attention to Article I, Section 8, which specifically enumerates those powers, and recall the words of its principal scribe, James Madison: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
Jefferson added, "I consider the foundation of the Constitution as laid on this ground that 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of congress is to take possession of a boundless field of power, not longer susceptible of any definition. ... [The Constitution] was intended to lace them up straightly within the enumerated powers. ... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

Though this has received scant attention, Mr. Boehner also pledged to pass legislation requiring the enumeration of constitutional authority for every bill considered by the House.

If the Republican House will pass an enumerated powers act requiring all legislation to stipulate its specific constitutional authority (as first and subsequently proposed by just-retired Rep. John Shadegg in every Congress since the 104th), that will elevate the national discourse about what the Constitution does and does not authorize. Enhancing that discourse, which is a primary driver of the Tea Party's momentum, will put the restoration of constitutional authority on a faster track.

Enumerating authority for legislation has been a primary Patriot Post objective since our inception. Indeed, it was the basis for our petition of the Bush administration for an Enumerated Powers Amendment. This proposed amendment is also a primary component of the Patriot Declaration, which stipulates "that all legislation explicitly cite its compliance with the Tenth Amendment to our Bill of Rights, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,' thus prohibiting the central government from usurping the powers reserved to the States or the People."

If the Speaker succeeds with enumerated powers enactment, the next step should be an amendment as this would make the enumeration of constitutional authority binding on both the House and Senate, and not be subject to legislative revocation.

In 1776, a great insurrection was mounted against the throne of tyranny, and from that revolution was birthed our Constitution. We face the prospect of such tyranny again, and the solution now, as then, is government constrained by the Rule of Law as enshrined in our Constitution.

Moving forward, those politicos of any stripe who forsake their solemn oath to support and defend our Constitution, and abide by its constraints, should be subject to censure and removal from office. The momentum of the Tea Party movement will increase, despite efforts by the Leftmedia to undermine its grassroots drive, and we will further expand the ranks of constitutional conservatives in 2012. Barack Hussein Obama, the days of your regime are numbered, as are those of every elected official who fails to honor their oath.

Semper Vigilo, Fortis, Paratus et Fidelis!

Mark Alexander
Publisher, The Patriot Post

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on January 06, 2011, 12:05:50 PM

Opinion: Will the New Congress Target Judges?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on January 06, 2011, 06:30:45 PM
Maybe judges should not be ruling that gay marriage is consitutionally compelled just like they should not have ruled that abortion is constitutionally compelled?
Title: Prager: Sacred Texts
Post by: Crafty_Dog on January 11, 2011, 05:31:02 AM
Dennis Prager
For the Left, There Are No Sacred Texts

A number of well-known spokesmen on the left have voiced reservations not only about the Republican decision to have members of Congress -- both Republicans and Democrats -- read the Constitution aloud at the opening of the latest session of Congress. They have also voiced reservations about the American veneration of the Constitution.

Three examples:

In a recent appearance on MSNBC, Washington Post staff writer Ezra Klein said: "The issue with the Constitution is that the text is confusing because it was written more than a hundred years ago and what people believe it says differs from person to person."

Joy Behar asked her guests on CNN's Headline News, "Do you think this Constitution-loving is getting out of hand?"

Congressman Jerrold Nadler, D-N.Y., complained that "They are reading it (the Constitution) like a sacred text."

What troubles Klein, Behar and Nadler?

The answer is that for leftism -- though not necessarily for every individual who considers himself a leftist -- there are no sacred texts. The two major examples are the Constitution and the Bible.

One cannot understand the left without understanding this. The demotion of the sacred in general and of sacred texts specifically is at the center of leftist thinking.

The reason is that elevating any standard, any religion, any text to the level of the sacred means that that it is above any individual. Therefore, what any one individual or even society believes is of secondary importance to that which is deemed sacred. If, to cite the most obvious example, the Bible is sacred, then I have to revere it more than I revere my own feelings in assessing what is right and wrong.

But for the left, what is right and wrong is determined by every individual's feelings, not by anything above the individual.

This is a major reason why the left, since Karl Marx, has been so opposed to Judeo-Christian religion. For Judaism and Christianity, God and the Bible are above the self. Indeed, Western civilization was built on the idea that the individual and society are morally accountable to God and to the moral demands of that book. That was the view, incidentally, of every one of the Founders including deists such as Thomas Jefferson and Benjamin Franklin.

This is entirely unacceptable to the left. As Marx and Engels said, "Man is God, and God is man." Therefore, society must rid itself of the sacred, i.e., God and the Bible. Then each of us (or the society, party or judiciary) takes the place of God and the Bible.

Morality is then no longer a God-given objective fact; it becomes a human-created subjective opinion. And one no longer needs to consult an external source to know right and wrong, only one's heart. We are then no longer accountable to God for transgressions, only to ourselves.

That is why when there is God-talk on the left, it is usually about "the God that is within each of us," not a God external to, let alone above, us, as Judaism and Christianity have always taught.

This explains the belief that is universally held on the left that the Constitution is an "evolving text," meaning that it says what anyone (on the left) wants it to say.

Conservatives, on the other hand, do not share this view. They do not believe the Constitution has something to say about everything they believe in. While the left sees the right to abortion in the Constitution (because the left believes in the right to abortion), those who oppose abortion do not believe that the Constitution prohibits abortion. They believe that the Constitution is silent on the issue. Precisely because the right does believe the Constitution is to be treated as sacred, it does not claim that whatever it supports is in the Constitution or that whatever it opposes is unconstitutional.

There are humble individuals and arrogant individuals on the right and on the left. But there is no arrogance like leftist arrogance. If you hold a Leftist position, you know that you are smarter, wiser and more moral not only than conservatives, but more so than the Bible, more so than the Constitution, indeed often more so than everyone who lived before you.

Same-sex marriage is a perfect example. The fact that neither Moses nor the Hebrew prophets, nor Jesus nor the Buddha nor any great secular humanist thinker ever advocated defining marriage as between members of the same sex does not cause the left to rethink its advocacy of same-sex marriage; it only proves to them how morally superior they are to Moses, Jesus, the prophets and everyone else who lived before them.

That is why we must to treat the Constitution as sacred text. Because the bottom line is this: If it is not regarded as sacred, it is nothing more than what anyone believes about any social issue. Which is precisely what the left wants it to be -- providing, of course, that the "anyone" is a liberal.

For the left, there are no sacred texts. There are only sacred (liberal) feelings.
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Boyo on January 13, 2011, 12:03:54 PM
Here is something by Walter Williams I found interesting...





What Our Constitution Permits


            Here's the House of Representatives new rule: "A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution." Unless a congressional bill or resolution meets this requirement, it cannot be introduced.

            If the House of Representatives had the courage to follow through on this rule, their ability to spend and confer legislative favors would be virtually eliminated. Also, if the rule were to be applied to existing law, they'd wind up repealing at least two-thirds to three-quarters of congressional spending.

            You might think, for example, that there's constitutional authority for Congress to spend for highway construction and bridges. President James Madison on March 3, 1817 vetoed a public works bill saying: "Having considered the bill this day presented to me entitled 'An act to set apart and pledge certain funds for internal improvements,' and which sets apart and pledges funds 'for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,' I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States and to return it with that objection to the House of Representatives, in which it originated."

            Madison, who is sometimes referred to as the father of our Constitution, added to his veto statement, "The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers."

            Here's my question to any member of the House who might vote for funds for "constructing roads and canals, and improving the navigation of water courses": Was Madison just plain constitutionally ignorant or has the Constitution been amended to permit such spending?

            What about handouts to poor people, businesses, senior citizens and foreigners?

            Madison said, "Charity is no part of the legislative duty of the government."

            In 1854, President Franklin Piece vetoed a bill to help the mentally ill, saying, "I cannot find any authority in the Constitution for public charity. (To approve the measure) would be contrary to the letter and spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded."

            President Grover Cleveland vetoed a bill for charity relief, saying, "I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit."

            Again, my question to House members who'd vote for handouts is: Were these leaders just plain constitutionally ignorant or mean-spirited, or has our Constitution been amended to authorize charity?

            Suppose a congressman attempts to comply with the new rule by asserting that his measure is authorized by the Constitution's general welfare clause. Here's what Thomas Jefferson said: "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

            Madison added, "With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

            John Adams warned, "A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever." I am all too afraid that's where our nation stands today and the blame lies with the American people.

            Walter E. Williams is a professor of economics at George Mason University. To find out more about Walter E. Williams and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at


Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on January 13, 2011, 02:30:34 PM
Important questions raised here. 

I confess to being surprised at Madison's comments about no roads, bridges, waterway improvements etc.  I was aware of various examples of "no charity power to be found in the Constitution".

Perhaps BD would be so kind as to set the stage for this conversation?
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on January 13, 2011, 06:47:35 PM
What I will write here likely will lead to backlash and consternation from at least some of you.

Williams sets up the article in a sort of straw man.  Asking the the question of whether the the father of the Constitution was constitutionally ignorant is silly.  And you and I both know it, and so does he.  However, as I often say, Madison was not the only person attending the convention, not the only person writing the Constitution, not the only person voting on the document in convention, and most certainly not the only person voting to ratify the document.  While I want to give Madison his due, it is important to note that even Madison is not solely, or even mostly (despite Williams' set up) responsible for the Constitution.  By the way, Constitution signer Rufus King was in the Senate at the time of Madison's veto.  I can't quickly find if he voted to support the bill, but pretending that he did, he would not be constitutionally ignorant.

Also, it is worth noting that the president, by design, is intended to check congressional power, and no where is this seen more than in the veto.  (Quick note: I like this.  I think the veto is incredibly important and worthwhile.)  Just because Madison SAID he vetoed for a particular reason does not mean that this is the real reason.  Perhaps the House had managed to upset him, and he vetoed for a personal or politcal reason. 

Another important innovation, by President Andrew Jackson, is the veto for strictly political reasons.  He, unlike his predecessors, did not feel the need to even try to justify some of his vetoes with a nod to the Constitution.  While I realize that Jackson postdates Madison, that cannot be said for the other two presidents that Williams uses to support his argument.  Pierce and Cleveland certainly may have felt that a veto was required by constitutional standards, or they could just have used constitutional language to support their politics.  I am not sure why either Pierce or Cleveland would be considered any more constitutionally literate than any other particular president.  Moreover,  it is worth noting that Cleveland hardly met a bill he didn't want to veto, and that over half of Pierce's were overridden: 

Finally, the Constitution has changed.  Not always in a formal way, and I realize that that it the only way that many of you see it as legitimate.  However, states, in many instances, have asked the national government to step in many different instances, many of which involve "charity."  Moreover, whether Madison likes it or not, we have an interstate highway system, and railroads, and planes. A far higher percentage of the commerce of today is interstate.  If I drink a Coke, based out of Georgia at a McDonald's, based out of Illinois, out of a cup made in ???, on my way to Maine, it is interstate commerce.  If I order a Dog Brothers DVD and it is shipped to my home, it is interstate. 

Things are different now, politically, environmentally, etc. 

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on January 21, 2011, 05:31:16 PM,0,2463815.story
Title: Conflict of interest; Roads in the Constitution
Post by: Crafty_Dog on January 21, 2011, 10:25:24 PM
I saw that BD.  I could be wrong but my initial reaction is typical liberal/progressive hypocrisy.  Where are they when the libs meet with the ACLU et al?

Returning to whether the C. grants the Federal Govt the right to build roads, etc. this passage from "A Patriot's History of the United States" by Schweikart and Allen (recommended by Glenn Beck :-D ) on page 233 says

"Like Calhoun and other disaffected Jacksonians, Harrison had once stood with the Democrats, and shared their states' rights sentiments.  Also like Calhoun, he thought the federal government well within its constitutional rights to improve harbors, build roads, and otherwise fund internal improvements."
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on January 22, 2011, 07:38:44 AM
I mostly agree with you Guro.  I read these articles about 4 hours after talking about the politics of recusal in class.  I am often struck at the sheer dumb luck of what I teach and what goes in politics.  At any rate, I found them interesting, but mostly due to timing. 
Title: WSJ: Accusations unfounded
Post by: Crafty_Dog on January 25, 2011, 06:42:57 AM
Last week, liberal activists at Common Cause called on the United States Justice Department to investigate Supreme Court Justices Antonin Scalia and Clarence Thomas for a supposed ethical lapse.

The case at issue is Citizens United v. Federal Election Commission (2010), involving an unflattering film about then-presidential candidate Hillary Clinton distributed by a conservative nonprofit corporation in 2008. The Supreme Court ruled that limits on corporate spending unconnected to any candidate's campaign were unconstitutional.

Common Cause took exception and is now seeking to overturn the decision. In a letter to the Justice Department, the group claims that Justices Scalia and Thomas, who voted with the majority of the Court to strike down the challenged spending limits, violated ethical rules requiring a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

The reason: Both justices purportedly attended (Mr. Scalia in 2007 and Mr. Thomas in 2008) "invitation-only" programs sponsored at least in part by the Koch family, owners of Koch Industries and frequent supporters of free-market and libertarian causes. Neither justice, the letter claimed, had disclosed any travel reimbursements by the Kochs.

Common Cause got its facts wrong. The Justices did not disclose reimbursements by the Kochs because they were actually the guests of the nonpartisan Federalist Society (a regular sponsor of public debates and speeches on legal and policy issues), which they did report.

Neither justice attended the conference. Both spoke at a dinner hosted separately from the conference. And neither spoke about the First Amendment, let alone restrictions on corporate spending. Mr. Scalia discussed international law, while Mr. Thomas delivered a speech on his recent memoir and life story.

Mr. Scalia's speech took place in January 2007, nearly a year before Citizens United was filed in the federal courts. Mr. Thomas spoke in January 2008, a few weeks after the case was filed but well before it reached the Supreme Court in 2009.

UCommon Cause's letter to the Justice Department is just the latest salvo in a long campaign by left-wing groups to intimidate conservative judges, academics and activists. For years, groups like Common Cause have assailed nonprofits that provide judges, lawyers and students with education in economics, law and American history. They have pushed for onerous disclosure regulations and even proscriptions against judges attending conferences sponsored by groups with corporate donors. The goal, of course, is to restore the monopoly on such educational forums to the law schools and the more reliably left-leaning American Bar Association.

Just this month, liberals sought to manufacture a controversy over Justice Scalia's speech to the House Tea Party Caucus. His topic: the constitutional limits of Congress's powers and those of the court. Although it is difficult to think of a more appropriate topic on which a justice might speak, the New York Times called it "outlandish" and "dismaying."

Of course, conservative judges aren't the only ones who give speeches. Justice Stephen Breyer, for instance, spoke recently at a private retreat for members of the House Judiciary Committee.

Such engagements are appropriate and healthy. Judges are not, and should not behave as, members of a cloistered religious order. They are citizens and voters as well as powerful public officials, and they should participate in the greater society on which their decisions often have a profound impact.

This would be impossible if the rule championed by Common Cause were adopted. Attendance of educational and professional events by members of the federal judiciary is common and has never been held as a basis for recusal. Judicial decisions, especially those of the Supreme Court, may have any number of effects on any number of groups. Recusal ordinarily is required only when a judge has a direct and personal economic interest in one of the parties to a case.

Common Cause's letter isn't only an unfair attack on two Supreme Court justices. It is an assault on the judiciary and an effort to silence conservative voices.

Messrs. Rivkin and Casey served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: bigdog on January 25, 2011, 08:00:28 AM
Further evidence that the independent judiciary should remain as such.  And, even if Justices Scalia and Thomas "should" have recused themselves, it would hardly have been the most egregious examples of a justice sitting on a decision in a case where he had obvious ties. 
Title: "and the pursuit of Happiness"
Post by: ccp on January 25, 2011, 10:27:18 AM
The Declaration guarantees the *pursuit* of happiness not happiness.  If we listened to the Democrats one would think everyone is guaranteed a home, health care, retirement, easy work, equal income, and every protection from every bad thing anyone could imagine is wrong with the world.  It is like a relative of mine said, everyone should be guaranteed equal chance in life not equal outcome.

***IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America
hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

— John Hancock

New Hampshire:
Josiah Bartlett, William Whipple, Matthew Thornton

John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island:
Stephen Hopkins, William Ellery

Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York:
William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey:
Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Caesar Rodney, George Read, Thomas McKean

Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina:
William Hooper, Joseph Hewes, John Penn

South Carolina:
Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Button Gwinnett, Lyman Hall, George Walton***

Title: I wonder if it about HC law
Post by: ccp on January 25, 2011, 10:38:44 AM
"Common Cause's letter isn't only an unfair attack on two Supreme Court justices. It is an assault on the judiciary and an effort to silence conservative voices."

Yesterday, Rachal Madcow was manic with glee discussing Thomas's apparant failure in not disclosing some tax issue with his wife. 
I almost wanted to prescribe her depakote to get her to stop drooling over the non issue.

The liberals are going after the conservative court in a big way lately.  They must be quite fearful of the possibility of a HC strike down.
Title: Mandate
Post by: G M on February 01, 2011, 08:42:55 AM|mostview

Bill would require all S.D. citizens to buy a gun
Title: Federal judicial vacancies reaching crisis point
Post by: bigdog on February 08, 2011, 07:47:56 AM
Title: Re: Issues in the American Creed (Constitutional Law and related matters)
Post by: Crafty_Dog on February 08, 2011, 12:16:18 PM
It would have been nice if the article had bothered to mention the history of the politicization (sp?) of all this which IMHO the Dems deserve the substantial majority of the credit.  Also it would have been nice if the article had bothered to delve into what kind of people Obama, who IMO is a genuine radical when it comes to Constitutional Law (see his Chicago Public Radio interview of 2003 or so fo