The Constitution: Who Has the Last Word?

The American Bar Association questions whether it is up to presidents to interpret the Constitution. (See this Washington Post story about an ABA panel’s report on presidential signing statements.) Others argue that a president is co-equal with Congress and the judiciary when it comes to interpreting the Constitution. My own view is that the Constitution gives the last word to the judicial branch. Here, in relevant part, is what it says about the scope and exercise of judicial power:

ARTICLE III.
Sect. 1. The judicial power of the United States shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to time ordain and establish. . . .

Sect. 2. The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting Ambassadors, other public Ministers, and Consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizen of another State (but only where a suit is brought by a State and not by a citizen of another State), between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects (but only where a suit is brought by one of the United States and not by a citizen or subject of a foreign state).

In all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact (except that jury findings of fact are not subject to appellate review), with such exceptions and under such regulations as the Congress shall make. . . .

[Italicized text in the first paragraph of Section 2 reflects changes made by the Eleventh Amendment. Italicized text in the second paragraph of Section 2 reflects the Seventh Amendment and the double-jeopardy clause of the Fifth Amendment.]

There are specific limitations on the scope of judicial power. But those limitations do not apply to the laws of the United States or its treaties.

There are specific limitations on the exercise of judicial power. First, there is the distinction between the Supreme Court’s original and appellate jurisdiction. Second, there is Congress’s ability to limit the appellate jurisdiction of the Supreme Court. But that grant of power to Congress does not enable it to limit the scope of the judicial branch’s power. It remains as stated in Section 2 of Article III. The only question is whether it may be exercised by the Supreme Court or must be exercised by a lower court.

Where does that leave Congress, the presidency, and the courts? Well, Congress can pass unconstitutional laws for as long there are majorities willing to do so. Presidents can sign unconstitional laws for as long as there are presidents who are willing to sign such laws. And presidents can ignore courts when courts find laws unconstitional, or when courts declare that the president has violated the Constitution. (Though presidents try to be subtle about ignoring courts, for presidents traditionally pay lip service to the notion that the final word goes to the courts.) And courts can continue to vest unconstitutional powers in government for as long as there are courts willing to do so — as they have been, in significant ways, from the onset of the New Deal.

All of that is just another way of saying that the Constitution’s “check and balances” and its (notional) grant of judicial supremacy have failed to do what they were supposed to do. They have not checked the enactment of unconstitutional laws. They have not checked judicial rulings that fly in the face of the Constitution. Rather, there has been a “race to the bottom” by the three branches, each vying to outdo the other in the undoing of the Constitution.

That is why I have argued for a changes to the Constitution that would enable Congress to check the judiciary, and enable the States to check the federal government. The three branches of the federal government no longer would be able to go their own way with respect to the Constitution. The imperial judiciary would be subject to rebuke and correction by the people’s elected representatives in Congress, and then all three branches would be subject to rebuke and correction by the people, acting through the States. For the details, read this.

Kelo Revisited

Larry Kudlow comments about Kelo, in light of two recent decisions by the supreme courts of Oklahoma and Ohio:

Kelo was a dreadful decision.

It had anti-private property rights, anti-capitalist and anti-growth stains all over it, and the political system is repudiating it (as it should) just about everywhere.

Oklahoma’s Supreme Court repudiated it, now comes Ohio’s highest court, in addition to almost twenty states which have passed laws protecting property rights.

To put it simply: Kelo was un-American.

Kelo, in case you need a reminder, was decided by the U.S. Supreme Court in its October 2004 term. A 5-4 majority of the Court (led by Justice John Paul Stevens) upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The majority’s rationale, in brief:

The city’s redevelopment plan serves a public purpose under the “takings clause” of the Fifth Amendment because the plan enables the city to generate higher tax revenues.

The Court should defer to the judgment of the States and their political subdivisions as to what constitutes a public purpose. (The majority wrote that “For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”)

In other words, the “takings clause” does not really apply to the States.

Not only is Kelo un-American — in the best, libertarian sense of that term — it is flat wrong. Note, for instance, the logical inconsistency in the majority’s finding. If the propriety of takings really is a matter for States to decide — as the majority would have it — there was no need for the Court to enter a judgment about the compliance of New London’s condemnation with the Fifth Amendment. All the Court needed to do was to upheld the City of New London’s actions, without determining their appropriateness under the “takings clause.”

Some libertarian commentators (e.g., here and here) have gone so far as to argue that Kelo was rightly decided because it upholds the principle of federalism. I wonder how they feel about Dred Scott?

Kelo was wrongly decided, in part, because Barron v. Mayor & City Council of Baltimore (1833), was wrongly decided. In that case, Chief Justice John Marshall opined that the Fifth Amendment is not binding on the States. As I explain here, the Fifth Amendment (all of it) was meant to apply to the States as well as to the federal government. Kelo also was wrongly decided because the meaning of the “takings clause” has been corrupted. As Justice Clarence Thomas wrote in his dissent from the Kelo majority,

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

Given all that, it is wrong for the U.S. Supreme Court to defer routinely to the takings of State and local governments, as if those takings are not a matter for federal scrutiny under the Fifth Amendment. Further, it is incumbent on the U.S. Supreme Court to reject takings by State and local governments whenever those takings are not for actual public use of property.

The Kelo majority shirked its constitutional duty when it deferred to the City of New London’s blatant seizure of private property for a private use. The majority’s opinion was nothing but a flimsy pretext to favor the collective over the individual and to flout property rights.

The Yates Verdict

This (Yates not guilty by reason of insanity) reminds me of this, this, this, and this. Enough said.

UPDATE: Well, not quite enough said. I must refer you to this commentary, by Mike Gallagher, which examines the broader implications of the willingness to find a guilty person “not guilty.”

Consent of the Governed

A common view among anarcho-libertarians is that the Constitution of the United States is not a binding “social contract” — and never has been — because

the Constitution was imposed on many Americans who were not parties to its ratification or who opposed its ratification, and

regardless of the circumstances of the adoption of the Constitution, one generation cannot impose a contractual obligation on later generations.

I have addressed those objections before, but I have further thoughts.

As to the first objection: Consensus on any set of complex issues is impossible. But why should that prevent a majority from imposing its rules on a commingled minority whose adherence to the rules is necessary to the attainment of their purpose? If that purpose is to establish a regime which fosters liberty — requiring, among other things, a commitment to mutual defense — it would be foolish for the majority to lessen its commitment to liberty for the sake of assuaging the minority. Opponents of the regime cannot claim to be oppressed if the regime allows them to express their opposition peacefully, which the Constitution does.

Moreover, the original Constitution became effective only when ratified by three-fourths of the signatory States (nine of the twelve States that sent delegates to the Constitutional Convention). And it bound only the ratifying States. The other three States (plus Rhode Island, which did not send delegates to the Constitutional Convention) could have refused to ratify it — as New Hampshire, Virginia, New York, and Rhode Island nearly did — and could therefore have remained outside the Union. (Click here for a chronology of the States’ ratifications.)

As to the second objection: The Constitution allows for amendments. (Click here and scroll down to Article V.) An amendment may be proposed by two-thirds of both houses of Congress or a two-thirds of the delegations of the States meeting in convention. An amendment must be approved by three-fourths of the States. The only matter now beyond amendment is “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” In other words, the Constitution can be changed by essentially the same process by which it was adopted: three-fourths of the States must agree to an amendment. But, thankfully, the Constitutions cannot be changed easily, in response to whims and passions that might diminish the Constitution’s guarantees of liberty.

So, yes, one may object to the Constitution, one may refuse to concede its legitimacy, and one may object to being forced by the state to abide by it. But here’s the catch: Such objections and reservations are valid only to the extent that the Constitution actually deprives one of liberty. Inasmuch as it does not do that (except in the fevered minds of anarcho-libertarians), and inasmuch as it fosters liberty, such objections are nothing more than irresponsible tantrums masquerading as a political philosophy.

Most of us are glad of the Constitution and accept it as a bulwark of liberty. The anarcho-libertarian alternative is anarchy, which is a way-station to warlordism and dictatorship. I fail to understand why a small (crackpot) minority should be relieved of its false sense of oppression so that all of us might “enjoy” the “benefits” of anarchy.

For more about the impossibility of peaceful, libertarian anarchy, read these posts:

Defense, Anarcho-Capitalist Style
But Wouldn’t Warlords Take Over?
My View of Warlordism, Seconded
The Fatal Naïveté of Anarcho-Libertarianism
Anarcho-Libertarian ‘Stretching’
QandO Saved Me the Trouble

An essential ingredient of anarcho-libertarianism is the non-aggression principle, which I address here:

Libertarian Nay-Saying on Foreign and Defense Policy
Libertarianism and Preemptive War: Part I
Right On! For Libertarian Hawks Only
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Sorting Out the Libertarian Hawks and Doves
Libertarianism and Preemptive War: Part II
Give Me Liberty or Give Me Non-Aggression?
More Final(?) Words about Preemption and the Constitution
“Peace for Our Time”
Idiotarian Libertarians and the Non-Aggression Principle

Contrary to anarcho-libertarians, liberty is not an essence that wafts from heaven to imbue our souls. It is a set of compromises about how we live with each other. To more deeply explore the meaning of liberty and the proper role of the state in assuring it, read these posts:

Practical Libertarianism for Americans (links to a series)
The Meaning of Liberty (a series gathered in a single post)
Actionable Harm and the Role of the State

Finally, there is Varieties of Libertarianism, which summarizes and compares the tenets of anarcho-libertariansim (or anarcho-capitalism as it is usually called) and the other main branches of libertarianism.

The Bad News about Wal-Mart’s Victory in Maryland

It’s not news that a federal judge has overturned Maryland’s anti-Wal-Mart law, which would have dictated how much Wal-Mart must contribute to the health-insurance premiums of its Maryland employees. Lost in the celebratory noise, however, is the fact that Wal-Mart’s “victory” is a hollow one for liberty, as I will explain.

First, the Maryland law, which was scheduled to take effect next January 1. Here, from the law firm of McGuireWoods, is a good description of the law’s intended effect and how it was tailored to attack Wal-Mart:

The Fair Share Health-Care Fund Act, Md. Code Ann., Lab. & Empl. § 8.5-101, et seq. (“Fair Share Act”), was enacted in January of this year and was to become effective January 1, 2007. By its terms, the Fair Share Act applies to non-governmental employers of 10,000 or more people in Maryland, but effectively covers only Wal-Mart Stores, Inc. The Fair Share Act requires that a for-profit employer that “does not spend up to 8% of the total wages paid to employees in the state on health insurance costs, shall pay to the Secretary an amount equal to the difference between what the employer spends for health insurance costs, and an amount equal to 8% of the total wages paid to employees in the State.” The Fair Share Act also requires certain reporting and disclosure requirements separate from those required under ERISA.

Only four non-governmental entities employ 10,000 or more in Maryland: Johns Hopkins University, Northrop Grumman Corp., Giant Food, Inc. and Wal-Mart. Johns Hopkins, as a non-profit, meets a lower 6% standard for such institutions set by the Act. Northrop Grumman successfully lobbied for an exclusion for compensation paid above the Maryland median income, thus permitting Northrop Grumman to meet the 8% standard. Giant Food, which actively lobbied for passage of the law, spends well over 8% of wages to Maryland employees on healthcare. Wal-Mart was thus the clear target of this legislation.

Note that Giant Food lobbied the Maryland legislature in an effort to harm a competitor: Wal-Mart. Welcome to the real world of regulation, where “bootleggers and Baptists” collude.

Anyway, Wal-Mart’s “victory” is not a victory for liberty because Maryland’s law (according to the federal judge who overturned it) is preempted by the Employee Retirement Income Security Act of 1974. In other words, neither Wal-Mart nor any other employer or employee in the U.S. has a right to enter into voluntary contracts regarding the terms and conditions of employment. The feds have the final say. Maryland’s “Wal-Mart law” just happened to encroach on the feds’ territory, and so it was chucked out.

Well, the decision is good for Wal-Mart (which is okay) and — if upheld — it does set a useful precedent. Quoting again from McGuire Woods:

The Court’s ERISA analysis, if upheld on appeal, will help employers challenge similar existing and proposed legislation, including the Chicago “big-box” retail store ordinance expected to be voted upon July 26. If adopted, this ordinance would initially raise the local minimum wage to $9.25 per hour, and would also give workers $1.50 per hour in benefits, at stores of at least 90,000 square feet that are owned by retailers having $1 billion in sales.

But that’s not progress toward liberty. Progress would be to get government out of employment relationships, thus honoring the Constitution’s guarantee of liberty of contract. That guarantee was affirmed in Lochner v. New York (1905) but dismissed in Nebbia v. New York (1934), never to be seen since.

Michigan Condones Self-Defense

From FoxNews:

LANSING, Mich. — Democratic Gov. Jennifer Granholm signed legislation Thursday that supporters say is aimed at strengthening and clarifying self-defense rights in Michigan.

People now will be allowed to use deadly force, with no duty to retreat, if they reasonably think they face imminent death, great bodily harm or sexual assault. They can use deadly force on their property or anywhere they have a legal right to be.

The legislation also protects people from civil lawsuits if they have used force in self-defense.

Is Granholm is running for re-election? Yes.

Advantage: The Constitution

Speaking of American royalty (the justices of the U.S. Supreme Court, that is), the following lines of succession have led to the present Court:

Chief Justice
Jay
Rutledge, J.* (elevated from associate justice)
Ellsworth
Marshall, J.
Taney
Chase, S.P.
White, M.R.
Fuller
White, E.D.*
Taft
Hughes*
Stone*
Vinson
Warren
Burger
Rehnquist*
Roberts, J.G.

Associate-1
Wilson
Washington
Baldwin
Grier
Strong
Woods
Lamar, L.Q.C.
Jackson, H.E.
Peckham
Lurton
McReynolds
Byrnes
Rutledge, W.B.
Minton
Brennan
Souter

Associate-2
Cushing
Story
Woodbury
Curtis
Clifford
Gray
Holmes
Cardozo
Frankfurter
Goldberg
Fortas
Blackmun
Breyer

Associate-3
Blair
Chase, S.
Duvall
Barbour
Daniel
Miller
Brown
Moody
Van Devanter
Black
Powell
Kennedy

Associate-4
Rutledge** (later elevated to Chief)
Johnson
Patterson
Livingston
Thompson
Nelson
Hunt
Blatchford
White, E.D.**
Lamar, J.R.
Brandeis
Douglas
Stevens

Associate-5 (line of succession ended in 1867)

Associate-6
Todd
Trimble
McLean
Swayne
Matthews
Brewer
Hughes**
Clarke
Sutherland
Reed
Whittaker
White, B.R.
Ginsburg

Associate-7 (line of succession ended in 1865)

Associate-8
McKinley
Campbell
Davis
Harlan, J.M.
Pitney
Sanford
Roberts, O.J.
Burton
Stewart
O’Connor
Alito

Associate-9
Field
McKenna
Stone**
Jackson, R.H.
Harlan, J.M. II
Rehnquist**
Scalia

Associate-10
Bradley
Shiras
Day
Butler
Murphy
Clark
Marshall, T.
Thomas

Sources: Appendix Two, “Nominations and Successions of the Justices,” The Oxford Guide to United States Supreme Court Decisions, edited by Kermit L. Hall, Oxford University Press, 1999; “Members of the Supreme Court of the United States,” from the website of the U.S. Supreme Court.

Because Congress has from time to time changed the size of the Court, not all of today’s justices hold a seat that was established in the earliest days of the Republic. The chief justiceship and associate justice seats 1 through 5 all date from 1789-90. The other associate justiceships were established in 1807 (#6), 1837 (#7), 1838 (#8), 1863 (#9), and 1870 (#10).

On the whole, the present members of the Court are more observant of the original Constitution than their predecessors. Here’s how I rate them (+ is better, = is the same, x is worse):

+ Roberts (succeeded Rehnquist)

= Souter (Brennan)

= Breyer (Blackmun)

= Kennedy (Powell)

= Stevens (Douglas)

x Ginsburg (White)

+ Alito (O’Connor)

+ Scalia (Rehnquist)

+ Thomas (Marshall)

That’s a net gain of three “strict constructionists.” Progress, yes. But more is needed.

American Royalty

The justices of the U.S. Supreme Court. Appointed for life. The final arbiters of the Constitution.

Not infallible, but possibly omnipotent.

The antidote? Read “An Answer to Judicial Supremacy?” and the posts linked therein.

A New Constitution, Revised Again

I have further revised my re-write of the Constitution of the United States. You can read the whole thing at “A New Constitution.”

Another blogger once said of such efforts that

[a]ll the Constitution really needs is some well-placed “And we mean it!” clauses:

–The Ninth Amendment…and we mean it!

—Privileges or Immunities…and we mean it!

–Taking property only for public use…and we mean it!

And so on.

Maybe abolish the well-intentioned but subsequently corrupted Necessary & Proper Clause, clarify the meaning of “regulate” in the Commerce Clause to return it to its intended denotation (i.e., “to make regular,” or “to standardize”) and of “commerce” to “that which is not agriculture or manufacturing” (i.e., trade).

The rest is all bells and whistles.

Not quite. The devil, as they say, is in the details. The main problem with the Constitution is not what it means but what meanings can be imputed to it because of its vagueness and ambiguity. What the Constitution really needs is a lot of loophole-closing and more checks on Congress and the Supreme Court, both of which have subverted and twisted the Constitution’s intended meanings.

My “new Constitution” is not only far more specific than the original — and more restrictive of the powers of government — but it also includes more checks on those powers. Specifically, there is this provision in Article V:

A judgment of any court of the United States of America may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.

Then there is Article VII, Conventions of the States, which opens with this:

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of Congress and/or holdings of the Supreme Court of the United States of America. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

Read the whole thing.

A Man-Bites-Dog Story

What got into the highest court of the State of New York? Today it actually deferred to the legislature on the question of same-sex marriage:

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.

How can that be? Isn’t it the job of the courts to impose untruth, injustice, and the un-American way when the elected representatives of the people fail to do so? But a majority of the New York supremes refused to bow to Leftish wisdom. According to The New York Times:

The decision called the idea of same-sex marriage “a relatively new one” and said that for most of history, society has conceived of marriage exclusively as a bond between a man and a woman. “A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted,” the decision stated.

“There are at least two grounds that rationally support the limitation on marriage that the legislature has enacted,” the court said, “both of which are derived from the undisputed assumption that marriage is important to the welfare of children.”

First, the court said, marriage could be preserved as an “inducement” to heterosexual couples to remain in stable, long-term, and child-bearing relationships. Second, lawmakers could rationally conclude that “it is better, other things being equal, for children to grow up with both a mother and the father.”

Jennifer Roback Morse couldn’t have said it better.

UPDATE: Less of a surprise is today’s unanimous ruling by the Supreme Court of Georgia, reversing a trial court and upholding a constitutional amendment barring gay marriage. That amendment was approved in 2004 by 76 percent of the voters of Georgia. How dare they?

The First Roosevelt

Bryan Caplan notes that

Time has put Teddy Roosevelt on the cover of its 5th Annual Special Issue, and the coverage stretches the limits of sycophancy. It reminds me of my high school history textbook, which praised any President who backed new regulations or started a war.

Thomas Sowell weighs in:

Theodore Roosevelt was indeed a landmark figure in the development of American politics and government, but in a very different sense from the way he is portrayed in Time magazine. In fact, the way that Theodore Roosevelt has been celebrated by many in the media and among the intelligentsia tells us more about them than about the first President Roosevelt. . . .

According to Time magazine, TR believed that “government had the right to moderate the excesses of free enterprise.” Just what were these excesses? According to Time, “poverty, child labor, dreadful factory conditions.”

All these things were attributed to the growth of industrial capitalism — without the slightest evidence that any of them was better before the growth of industrial capitalism. Nothing is easier than to imagine some ideal past or future society or to imagine that the net result of government intervention is bound to be a plus.

Sowell goes on to put the boot into that belief.

My own views about TR’s influence on America can be found in two posts. Here I point to the beginnings of the regulatory-welfare state during TR’s presidency (1901-9):

What happened around 1906? First, the regulatory state began to encroach on American industry with the passage of the Food and Drug Act and the vindictive application of the Sherman Antitrust Act, beginning with Standard Oil (the Microsoft of its day).

And here — in my antidote to standard history texts for schoolchildren — I have more to say about the First Roosevelt; for example:

Roosevelt was an “activist” President. Roosevelt used what he called the “bully pulpit” of the presidency to gain popular support for programs that exceeded the limits set in the Constitution. Roosevelt was especially willing to use the power of government to regulate business and to break up companies that had become successful by offering products that consumers wanted. Roosevelt was typical of politicians who inherited a lot of money and didn’t understand how successful businesses provided jobs and useful products for less-wealthy Americans.

It ran in the family.

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.

Whatever your view of the origin of rights or the necessity of a state, today is a day to reflect on the central argument of the Declaration of Independence:

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.

That argument remains as valid today as it was 230 years ago. It is time for a constitutional convention to redeem the promise of liberty made in the Declaration of Independence.

The Lessons of the Hamdan Decision

The Supreme Court today handed down its 5-3 decision in Hamdan v. Rumsfeld. According to SCOTUSblog,

[t]he Supreme Court ruled . . . that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year’s Detainee Treatment Act. The vote against the commissions and on the Court’s jurisdiction was 5-3, with the Chief Justice not taking part.

The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

Okay, so here are the lessons:

1. Don’t hold ememy combatants at Gitmo.

2. Try again after the retirement of Justice Stevens (author of the majority opinion).

3. Let the Court enforce its own rulings.

4. AJ Strata says, “can’t try them, so fry them.”

Those UN Gun Grabbers and the Second Amendment

Michelle Malkin joins the list of bloggers and other who are alarmed by the upcoming UN conference on global gun control. She points to a release by the Second Amendment Foundation, which includes this:

The U.N. Conference on Global Gun Control, scheduled June 24- July 7, poses a direct threat to our constitutionally-protected individual right to keep and bear arms, said Alan Gottlieb, founder of the Second Amendment Foundation (SAF). Gottlieb will attend the conference, but he suggests that this may be an opportune time for Congress and the White House to reconsider this nation’s level of financial support for an international organization that now wants to write a treaty that specifically attacks a cornerstone of our federal constitution, and the lynchpin to our liberty. . . .

“Yet, as we celebrate our 230th anniversary, global anti- gunners, under the guise of reviewing a U.N. program of action on small arms and light weapons, want to create a binding international agreement that could supersede our laws and constitution,” Gottlieb said. “We have done much for the U.N. and in return, the organization has hosted despots, tyrants and dictators whose record of human rights abuses, aggression and genocide speaks for itself. And now comes an attack on our constitution, on our national holiday.

Gottlieb and other defenders of Americans’ right to bear arms are justifiably alarmed by the UN’s blatant anti-Americanism, of which the upcoming conference is but the latest manifestation.

It is my view, however, that the U.S. cannot effectively amend the Constitution and do away with the right to bear arms simply by virtue of its membership in the UN. I have made that point in connection with our right to declare war regardless of the UN’s position on such a declaration. (See this, this, and this.) The same logic applies to the Second Amendment.

I am not counseling complacency in the face of enemies abroad and dupes at home. I am saying that — in the end and given the right Supreme Court (which we probably have on this issue) — the Second Amendment will survive.

Hudson v. Michigan and the Constitution

Re: Hudson v. Michigan, which the U.S. Supreme Court decided yesterday. A post at SCOTUSblog gives the essence of the case in this brief paragraph:

The bare holding of the case is simple: if police have a warrant to search a home, and they enter in a way that violates their constitutional duty to knock first and announce themselves, the evidence turned up in the search can be used in a criminal prosecution.

The critical point is the assertion that police have a “constitutional duty to knock first and announce themselves” in the execution of a warrant. The Court accepts that reading of the Constitution. The syllabus that accompanies the Court’s holding begins with this:

Detroit police executing a search warrant for narcotics and weaponsentered petitioner Hudson’s home in violation of the Fourth Amendment’s “knock-and-announce” rule.

Where is that rule found? It’s not spelled out in the Fourth Amendment:

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.

We have “knock-and-announce” for the reason given in Justice Thomas’s majority opinion in Wilson v. Arkansas (1995):

At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law “knock and announce” principle forms a part of the reasonableness inquiry under the Fourth Amendment.

However, later in Justice Thomas’s opinion we find this:

This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. As even petitioner concedes, the common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances.

It’s obvious that “knock-and-announce” is a patently absurd rule for those cases in which knocking and announcing would enable a suspect to destroy, hide, or abcond with the very items that are the subject of a search warrant. In fact, Justice Scalia’s majority opinion summarizes the exceptions to “knock-and-announce.”

Hudson v. Michigan is controversial mainly (solely?) because, as Justice Scalia states, “[f]rom the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation.” If the State of Michigan had not made that concession, Hudson would never have made it to the Supreme Court.

Here’s my take: Because of Michigan’s concession, the Court was bound to accept as “fact” that the entry into Hudson’s house was a “knock-and-announce” violation. But the facts of the case suggest that it was not a clear-cut violation of “knock-and-announce.” Again, from Justice Scalia’s opinion:

Police obtained a warrant authorizing a search for drugs and firearms at the home of petitioner Booker Hudson. They discovered both. Large quantities of drugs were found, including cocaine rocks in Hudson’s pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. Hudson was chargedunder Michigan law with unlawful drug and firearm possession.

This case is before us only because of the method of entry into the house. When the police arrived to execute the warrant, they announced their presence, but waited only a short time—perhaps “three to five seconds,” App.15—before turning the knob of the unlocked front door and entering Hudson’s home. Hudson moved to suppress all the inculpatory evidence, arguing that the premature entry violated his Fourth Amendment rights. . . .

When the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few? Our “reasonable wait time” standard, see United States v. Banks, 540 U. S. 31, 41 (2003), is necessarily vague. Banks (a drug case, like this one) held that the proper measure was not how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs—but that such a time (15 to 20 seconds in that case) would necessarily be extended when, for instance, the suspected contraband was not easily concealed. Id., at 40–41. If our ex post evaluation is subject to such calculations, it is unsurprising that, ex ante, police officers about to encounter someone who may try to harm them will be uncertain how long to wait.

Reading between the lines, the majority in Hudson v. Michigan believed that the case did not involve a “knock-and-announce” violation. But the majority could not change the fact of Michigan’s concession that there was such a violation. So the majority did the next best thing; it prevented Hudson from getting off scot-free, in spite of the supposed violation. How? The majority found the “exclusionary rule” inapplicable and allowed the evidence found in Booker Hudson’s home to be used against him.

By its action the majority also forestalled claims similar to Hudson’s. The second-guessing by prosecutors and judges of reasonable judgments made by the police in the execution of their duties — especially in the execution of lawful warrants — is not a defense of liberty. Rather, it undermines liberty by making it easier for predators like Booker Hudson to elude justice, on the questionable theory that “it is better that ten guilty persons escape than that one innocent suffer.”

I contend, further, that a proper reading of the Constitution would require either “knock-and-announce” or a warrant, not both. At the time of the framing, when “knock-and-announce” was accepted law, warrants were not accepted law. As William J. Stuntz writes in The Heritage Guide to the Constitution (pp. 326-9):

. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer’s foe — one more hoop to jump through — but at the time of the Founding it was the constable’s friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use.

Hudson served justice, while remaining true to the original meaning of the Constitution.

Another Argument for the Death Penalty

From the Associated Press via Yahoo! News:

A registered sex offender confessed to killing a Clemson University student and to sexual assaults in Alabama and Tennessee, authorities said Wednesday. . . .

“He didn’t know the victim,” [Jefferson County, Tenn., Sheriff David] Davenport said Wednesday. “It is our information he was driving around in the (victim’s) neighborhood and saw her and he liked her looks.”

In Rainsville, Ala., Inman was charged with attempted rape, burglary, robbery and theft of property in a May 23 incident in which authorities said he broke into a home and tried to attack a 24-year-old woman after she came home for lunch. Davenport said he expects Inman also will be charged with a May 24 rape in Sevierville, Tenn.

“It seems like he was just wandering around, finding vulnerable people — women — and preying on them and conducting sexual assaults and getting progressively worse,” Davenport said. “This may be just the tip of the iceberg.”

If incarceration rates in the U.S. are too high (hah!), it’s because we’re not executing enough predators.

Quick Takes

The real meaning of the Supreme Court’s decision in Garcetti v. Ceballos. It’s not an anti-whistleblowing decision; it’s an employer-rights decision. He who pays the piper calls the tune.

An irrelevant, cross-national comparison of incarceration rates by a knee-jerk libertarian, who thinks that the U.S. rate is “absurd.” There’s no “right” rate. Each country must do as its circumstances dictate. Perhaps other countries’ rates are too low.

The Strata-Sphere links to “Thomas Sowell’s analysis on how the liberal mind set is built upon a pile of self aggrandizing fantasies. It is in four easy parts at RCP (I, II, III, IV).”

Some of the coverage — and coverage of the coverage — of the Toronto terrorists. And, relatedly, how “NSA Style Snooping Saved Lives.”

Gay marriage “looms as battle of our times.” Well, maybe along with immigration and after the war on terror.

International Law vs. Homeschooling

An international treaty — which the U.S. Senate has not ratified — could nevertheless be used to bar parents from homeshooling their children. An article at LifeSite explains:

The Home School Legal Defense Association’s (HSLDA) Chairman and General Counsel, Michael Farris, warns that even though the U.S. has never ratified the United Nations Convention on the Rights of the Child, the convention may still be binding on citizens because of activist judges.

According to a new “interpretation” of what is known as “customary international law,” some U.S. judges have ruled that, even though the U.S. Senate and President have never ratified the Convention, it is still binding on American parents. “In the 2002 case of Beharry v. Reno, one federal court said that even though the Convention was never ratified, it still has an ‘impact on American law’,” Farris explained. “The fact that virtually every other nation in the world has adopted it has made it part of customary international law, and it means that it should be considered part of American jurisprudence.”

Under the Convention, severe limitations are placed on a parent’s right to direct and train their children. As explained in a 1993 Home School Court Report by the HSLDA, under Article 13, parents could be subject to prosecution for any attempt to prevent their children from interacting with material they deemed unacceptable. Under Article 14, children are guaranteed “freedom of thought, conscience and religion” – in other words, children have a legal right to object to all religious training. And under Article 15, the child has a right to “freedom of association.” “If this measure were to be taken seriously, parents could be prevented from forbidding their child to associate with people deemed to be objectionable companions,” the HSLDA report explained.

The HSLDA report points out that

the U.N. Convention would:

[1] transfer parental rights and responsibilities to the [s]tate,
[2] undermine the family by vesting children with various fundamental rights which advance notions of the child’s autonomy and freedom from parental guidance; and
[3] establish bureaucracies and institutions of a national and international nature designed to promote “the ideas proclaimed in the Charter of the United Nations” and to investigate and prosecute parents who violate their children’s rights. . . .

The State Will Determine the Child’s “Best Interest’

Article 3: “In all actions concerning children,” the courts, social service workers and bureaucrats are empowered to regulate families based on their subjective determination of “the best interest of the child.” This article shifts the responsibility of parental judgment and decision making from the family to the State (and ultimately the United Nations).

There is hope, however, thanks to the U.S. Supreme Court’s opinion in Pierce v. Society of Sisters (1925) (summary here, full opinion here). The summary:

Facts of the Case

The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Society of Sisters v. Hill Military Academy.

Question Presented

Did the Act violate the liberty of parents to direct the education of their children?

Conclusion

Yes. The unanimous Court held that “the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”

In reaching its decision, the Court wrote that

we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Pierce v. Society of Sisters dates from the era of Lochnerian (substantive) due process, which ended during the New Deal. But a new era of substantive due process may be upon us. Moreover, given the Court’s present makeup (four conservatives, one waffler, and five Catholics) I am hopeful that a test of parents’ rights would be decided in favor of parents. Given Justice Kennedy’s quirkiness, I would be even more sanguine if Justice Stevens or Justice Ginsburg were to retire soon.

(Thanks to my daughter-in-law for the link to the LifeNet article.)

A Precedent for the Demise of the Insanity Defense?

Lou Michaels writes at Suits in the Workplace about a recent decision by the Massachusetts Judicial Supreme Court:

Looking to both Massachusetts and federal disability law, the court noted that nothing in the Massachusetts law suggested that a lower standard of conduct should apply to handicapped employees vice employees without a disability. Examining a specific case involving drunken behavior by an alcoholic employee of an airline, the court refused to distinguish between misconduct due to alcoholism and misconduct due to mental illness. In other words, an employer is not required to “accommodate” a disabled employee by altering the fundamental conduct standards of the workplace. The dissent misses this key point, and opens the door to a completely unmanageable workforce, by trying to save the case noting that a “reasonable” jury could conclude that the conduct was not egregious because it was the result of mental illness.

In other words, the majority’s opinion rejects the notion that conduct is excused by mental illness. “Conduct” includes murder, no? Ergo, murder should not be excused by mental illness, perhaps not even in Massachusetts. End of “not guilty by reaon of insanity” — I wish.

Justice Can Be Idiotic

From the news archive of the Richmond, Virginia, based law firm of McGuireWoods:

The Fourth Circuit Court of Appeals late last month ruled that an employee whose job was eliminated during a corporate consolidation while he was on leave under the Family and Medical Leave Act (FMLA) did not have the right to be reinstated when his position would have been eliminated anyway even if he had not been on FMLA leave.

The plaintiff . . . had a history of numerous approved medical leaves, including FMLA leave. Hired in 1994 and promoted in 1999, he took his last leave in 2003. While on leave, the defendant employer advised the employee that his position was to be eliminated as part of a consolidation. The defendant encouraged him to apply for the jobs newly created by the consolidation, as well as other available positions. The plaintiff decided not to apply and was terminated upon his return from FMLA leave. The plaintiff sued, and the district court granted summary judgment for the employer.

The Fourth Circuit affirmed. . . .

The McGuireWoods release goes on to say that

. . . the court held that FMLA does not create any right to restoration. The court held that employees are not entitled to return to their former position when the employer “would have discharged the employee in any event regardless of the leave.” In reaching its decision, the court reasoned that allowing for guaranteed restoration would create unreasonable results, such as requiring employers to retain employees who performed inadequately prior to taking their leave. . . . A circuit split remains on the issue.

In sum, your employer tells you that you’re going to be fired. Instead of accepting your employer’s help in finding a new job, you take leave. You then sue the employer when you are fired. And some courts rule in your favor. Idiotic.

The district court did the right thing in granting summary judgment to the employer. The Fourth Circuit did the right thing in affirming the summary judgment. But at least one other circuit, ruling in parallel case(s), has found for the employee(s). So it’s up to the U.S. Supreme Court to resolve the split. And until it does, federal courts outside the Fourth Circuit will be able to rule in favor of employees in such cases. Idiotic.

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