Now That Specter is a Republican...

This article of his from The New York Review of Books seems even a bit more pertinent, The Need to Roll Back Presidential Power Grabs.

These experiences have crystallized for me the need for Congress and the courts to reassert themselves in our system of checks and balances.^[16] The bills I have outlined are important steps in that process. Equally important is vigorous congressional oversight of the executive branch. This oversight must extend well beyond the problems of national security, especially as we cede more and more authority over our economy to government officials.

As for curbing executive branch excesses from within, I hope President Obama lives up to his campaign promise of change. His recent signing statements have not been encouraging. Adding to the feeling of déjà vu is TheWashington Post 's report that the new administration has reasserted the "state secrets" privilege to block lawsuits challenging controversial policies like warrantless wiretapping: "Obama has not only maintained the Bush administration approach, but [in one such case] the dispute has intensified." Government lawyers are now asserting that the US Circuit Court in San Francisco, which is hearing the case, lacks authority to compel disclosure of secret documents, and are "warning" that the government might "spirit away" the material before the court can release it to the litigants.^[17] I doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens.

—April 16, 2009

Warning: Law Talk - Constitutional Law

Reading about Justice Ginsburg on Sunday morning in Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa and I wanted to comment. Here is what got me wanting to write:

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.

***

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

What the wingnuts (and I have no other term that covers all the people who attack the Supreme Court for reading foreign law) do not understand is this: the law of the fifty states is foreign to the federal courts. State law can be persuasive or it cannot, but it is never controlling.

If we reject all foreign law, then the entire basis of our law on English common law must be thrown out. That does not get mentioned much but then the critics have got to know something about our legal system to make the argument. Ginsburg could have made the same comment about The Federalist Papers as she made about law professors. Madison, Jay and Hamilton do not control our Supreme Court but can only be persuasive authority.

Does anyone else wonder why the "last best hope of earth" is so ignored in favor of the Canadians?

What the wingnuts need to ask two questions: 1) was the foreign source reasonable and rational, and 2) was the Supreme Court's use reasonable and rational? Of course, one must be reasonable and rational to ask those questions.

Another View on the Vice Presidency

Which makes me wonder why Palin and Cheney would want to expand it?

Is the Vice Presidency Necessary? - The Atlantic (May 1974):

"It is a doomed office. No President and Vice President have trusted each other since Jackson and Van Buren. Mistrust is inherent in the relationship. The Vice President has only one serious thing to do: that is, to wait around for the President to die. This is hardly the basis for cordial and enduring friendships. Presidents see Vice Presidents as death's-heads at the feast, intolerable reminders of their own mortality. Vice Presidents, when they are men of ambition, suffer, consciously or unconsciously, the obverse emotion. Elbridge Gerry spoke with concern in the Constitutional Convention of the 'close intimacy that must subsist between the President & vice-president.' Gouverneur Morris commented acidly, 'The vice president then will be the first heir apparent that ever loved his father.'

At the Constitutional Convention, Roger Sherman noted that if the Vice President did not preside over the Senate, 'he would be without employment.' Sherman's observation was prophetic, except that the Vice President's constitutional employment is a farce. Mr. Agnew as Vice President, for example, never went near the Senate if he could help it. Early Vice Presidents of a philosophical bent filled their days by writing attacks on the power of the national government. Jefferson wrote the Kentucky Resolution as Vice President, Calhoun the South"

And Schlesinger may provide an answer to a question I asked here. No one has ever seen much opportunity in President of the Senate.

Upcoming Elections: Appellate Court Retention

Along with everything else, Hoosiers get to decide whether the appellate court judges should be kept or sent back to civilian life. Three Supreme Court Justices, one Court of Appeals judge, and the Tax Court judge are up for retention.

This year we have a web page Judicial Retention in Indiana on the subject. You get a thumbnail biography and links to their cases.

All I am going to say here is that no appellate court judge has lost their job on a retention vote.

The Supreme Court and the Second Amendment

AS I said, I have some old drafts that I am publishing today. The handgun decision probably seems ancient by now. I have not had time to read the case (too many to read that directly impact my practice need being read). I thought the following from the Washington Post being as it is from the city where this ruling directly impacts had the most interest. They also show my division on the subject.

What I have not yet been able to learn is this: did the United States Supreme Court impose the Second Amendment on the States? If not, I will call that a good thing and the debate is a bit of a tempest in a teapot. If it did impose the Second Amendment on the States, then it creates a bit of a federalism problem for the conservatives. After all, the states have their own version of this right and now the conservatives have nationalized the right.

I do need to read the opinion, but if the descriptions are as I have heard, then it is pretty poorly reasoned opinion. Yes, it does have some relationship to a militia.

E. J. Dionne Jr. - The D.C. Handgun Ruling:

"In knocking down the District's 32-year-old ban on handgun possession, the conservatives on the Supreme Court have again shown their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.

The court's five most conservative members have demonstrated that for all of Justice Antonin Scalia's talk about 'originalism' as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case."

Deadly Consequences -- But the Right Call

The big problem, for me, is the clarity of the Second Amendment's guarantee of the "right of the people to keep and bear arms." The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.

I've never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written -- and give it such pride of place -- the No. 2 position, right behind such bedrock freedoms as speech and religion. Even Barack Obama, a longtime advocate of gun control -- but also a one-time professor of constitutional law -- has said he believes the amendment confers an individual right to gun ownership.

***

But I also believe that if the Constitution says yes, you can't just blithely pretend it says no. Yesterday's decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment's guarantee. If not, then the way to fix the Constitution is to amend it -- not ignore it.

Ouch - British Judges Criticize Our Criminal Sentencing Law

So what does the London Times write when British judges decide not to implement sentencing rules like ours'? Judges scorn American-style sentencing to control prison overcrowding. Scorn: "an object of extreme disdain, contempt, or derision : something contemptible."

"Plans for an American-style sentencing “grid” to control prison numbers appear doomed because of overwhelming opposition from the judiciary.

Judges at all levels, as well as the Magistrates' Association, have dealt a devastating blow to the scheme which would have required them to deliver set punishments for specific crimes.

The Magistrates' Association says that restriction of that discretion would be a retrograde step: “People are individuals. We would regret any change which moved us towards a formulaic or mechanistic approach to sentencing.”"

***

The Council of Circuit Judges says: “The American dream would result in a nightmare in England and Wales.” It adds that it would be impossible to devise an American-style sentencing grid that would not be a “blunt instrument resulting in unfairness and injustice”.

The magistrates suggest that some of the proposals “could be seen as an attempt to engineer a reduction in the prison population, rather than to deliver just sentences that fit individual crimes”.

They said: “Consistency of approach to sentencing is needed, not uniformity of sentence.” Consistency is already promoted through the existing sentencing guidelines, they say.

So British judges hold higher the idea that we are all individuals and justice is an individual thing than we do?

Another opinion on Indiana's Voter ID Law

While I can think of no better solution to Indiana's Voter ID Law is a Democratic House and a Democratic Governor, but for a more elevated view read The Pitfalls of Voter Identification Laws in a Post-Crawford World.

Why I Prefer America - Amongst Other Reasons

Remember 2004 when many wer talking about moving to Canada? Been to Toronto, think it is a great city and have a friend who tempts me with moving. Problem is that I noticed that I kept singing God Save Teh Queen with the wrong words.

American Exception - Unlike Others, U.S. Defends Freedom to Offend in Speech from The New York Times gives us another reason to prefer - or for me to prefer - the United States:

In his opening statement in the Canadian magazine case, a lawyer representing the Muslim plaintiffs aggrieved by the Maclean’s article pleaded with a three-member panel of the tribunal to declare that the article subjected his clients to “hatred and ridicule” and to force the magazine to publish a response.

“You are the only thing between racist, hateful, contemptuous Islamophobic and irresponsible journalism, and law-abiding Canadian citizens,” the lawyer, Faisal Joseph, told the tribunal.

In response, the lawyer for Maclean’s, Roger D. McConchie, all but called the proceeding a sham.

“Innocent intent is not a defense,” Mr. McConchie said in a bitter criticism of the British Columbia law on hate speech. “Nor is truth. Nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.”"

Can we explain all this to President Bush and Vice President Cheney that free speech applies to their bosses, the citizens of this country?

Indiana ID Law Kept Some From Voting

From The Muncie Star Press:

When combat veterans and elderly nuns are denied the right to vote in Indiana, there's something wrong.

Indiana's voter ID law, which was passed in 2005, is flawed, despite the fact it was upheld last week by the U.S. Supreme Court. The largest and most contested election since it went into effect for the 2006 primary election brought the problems to the surface.

It looks now like we have something besides a facial challenge to the law (see my earlier post on this statute here and here.) Of course, getting stronger Democratic majority in the House and in more Democrats in the Senate and kicking out Mitch Daniels might be a quicker remedy for this law.

Prudish Indiana - Lixensing Fee for Sexually Explicit Materials

Indiana's General Assembly stuck their collective foot in it - such is my opinion.

From The Indianapolis Star's ACLU, booksellers sue over registration:

The Indianapolis Museum of Art, which sells art books containing images of nudes painted by the Old Masters, joined a civil rights group today in suing over a law that would require business selling pornography to register with the state.

Maxwell L. Anderson, director and chief executive of the IMA, said he is concerned about the law’s effect on the museum and the broader message it sends.

“Our role in this community is to foster tolerance for creativity, and this law is completely in opposition to that mission,” Anderson said.

He added that the law “is not a signal of a progressive place.”

Here is a description of the statute and the suit:

The suit’s target is House Enrolled Act 1042, approved this year by the General Assembly. It requires businesses that sell such material to pay a $250 fee and register with the secretary of state. The suit says the law also appears to require employees of the businesses to register and pay the fee.

Ken Falk, legal director for the ACLU of Indiana, said the law is vague, overly broad and violates the First Amendment.

The Indiana Daily Lawyer's Suit challenges new sexually explicit retailer law has a very interesting detail:

The suit claims the statue contains no guidance as to what types of materials must be registered with the Secretary of State and will lead to self-censorship in order to avoid the state's registration requirements.

Okay, Falk has to file in the federal court to bring the case under 42 U.S.C 1983 which allows for attorney fees if they win. To bring it under the federal statute, there had to be a violation of federal rights. That our state legislators might not know that a statute violates Hoosier's federal rights is bad but I think ignoring our state constitutional rights may be even worse.

"Our state constitutional rights"? Yes, we have 37 of them. Some that do not appear in the United States Constitution and some that do but are different from our federal rights. For instance, Article I, Section 9 reads differently from the federal First Amendment speech rights and is also a bit broader:

No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print,

The ICLU may not have included this in their lawsuit but this does not mean we cannot question our legislators' protection of our constitutional rights and how they view their obligations to uphold both the state and federal constitutions.

Instead, we have businesses paying money to fight the statute rather than employing Hoosiers and our taxpayers doubly wasted - first for paying legislators to write and pass the statute and then for defending the lawsuit.

Preachers and Politics

Finally, someone makes a point about the different treatment of Jeremiah Wright and Republican preachers. E.J. Dionne, Jr. makes two very good points in his column, Fair Play for False Prophets.

He compares the treatment given Jerry Falwell, Bailey Smith, Pat Robertson, and John Hagee, and finds that the press really did not give them as hard a time as they did Jeremiah Wright. His second point is that Wright got the treatment he deserved.

What I have found missing in all the blather about Jeremiah Wright is the recognition that Protestant denominations are too numerous for one person to have an overarching command of that denomination or even of the minds of the church members. Some talk about us being a Christian nation but never define Christian. Reverend Wright is just as much a Christian as Reverend Hagee and both as much as Pope Benedict. Right? Well, Reverend Hagee has no good words for Catholicism but then did Calvin or Luther or John Knox? The Pope believes that the One True Church is the Roman Catholic Church. I heard little about theology but much of politics from Reverend Wright, so I am not sure where he stands to the other two.

I think here is one reason why we have a separation of church and state - which is the denomination represented by the government? None of the denominations I can think of would willingly submit themselves to the governance of another. Therefore, none can govern over any. Put another way, would you prefer your religious views, your conscience, be that of your faith or of a government approved by Pat Robertson? If you answer yes to that question, would you agree if you had to comply with the religious tenets of Reverend Wright?

The Voter ID Case

In case anyone wants to see the opinion, click here. No, I have not read the opinion but have only heard the news reports. My understanding is that the problem lay in this being a facial attack - that the law on its face is bad. Hard cases to make and even harder with our current Supreme Court's dislike of upholding civil rights. The case might have been different if those attacking the law could have found someone injured by the law. But then it would not have been a facial attack.

I think the better idea is to get a better General Assembly and get rid of this law.

Indiana Voter ID Upheld by U.S. Supreme Court

So reports The Indiana Daily Lawyer:

The nation's high court issued its decision at 10 a.m. on the pair of consolidated cases, William Crawford, et al. v. Marion County Election Board, et al., No. 07-21, and Indiana Democratic Party, et al. v. Todd Rokita, No. 07-25. The decision comes just a week prior to Indiana's primary on May 6, upholding the strictest voter ID law in the nation and dismissing any uncertainty that may have existed going into the election after justices heard arguments in early January.

Scotusblog has this report:

Today’s opinion in Crawford v. Marion County Election Bd. (07-21) is now available here. Justice Stevens announced the judgment of the Court and delivered an opinion in which Chief Justice Roberts and Justice Kennedy joined. Justice Scalia filed an opinion concurring in the judgment in which Justices Thomas and Alito joined. Justice Souter filed a dissenting opinion in which Justice Ginsburg joined. Justice Breyer also filed a dissenting opinion.

Obama on The United States Supreme Court

Did anyone else pick up this statement by Obama other than The Indianapolis Star?

"'The Supreme Court has to be, first and foremost, thinking about and looking out for those who are vulnerable in our midst,' he said."

"People who are poor. People who have been cheated. People who have been taken advantage of. People who have unpopular opinions. People who are outsiders," Obama said.

Those folks, he said, need the judicial branch looking out for them, "because powerful people, insiders, they typically are in control of the other two branches of government. They have access."

Still, he added, that doesn't mean he wants a court that will always side with those folks, regardless of the facts and the law.

****

He wants "a Supreme Court who is going to stop giving the executive branch -- whether it's me or George Bush or John McCain or whomever it is -- stop giving the president carte blanche to do whatever it is they want."

Geez, that is a fairly important statement. Maybe it has too much commonsense to make a splash to get past the noise generated by the bitterness comment.

ICLU Loses License Plate Case

Based on the following report from The Indianapolis Star, I got to say the ruling makes sense but making sense does not make it palatable:

The American Civil Liberties Union of Indiana argued that without the fee, the plate was elevated above others bearing messages supporting the environment, education and other causes.

Introduced last year by state law, the "In God We Trust" plate is carried by more than 1.6 million vehicles.

Marion Superior Court Judge Gary Miller's ruling, issued Wednesday, says the plate is different from special group recognition plates that carry the administrative fee. Those often require a contribution to a group or university and require special handling by the Bureau of Motor Vehicles.

Religious Liberty Archive

Something a bit different from Rothgerber Johnson & Lyons LLP of Colorado Springs, CO. It maintains the Religious Liberty Archive :

"The Religious Liberty Archive is an extensive repository of valuable information and a useful resource for anyone seeking information about state and federal laws pertaining to religious freedom in the United States. View other Religious Liberty cases, commentaries, federal statutes, state constitutions, and important historical materials relevant to religious freedom in the United States."

New censorship law for Indiana?

I am behind the times still. Bilerico published Indiana Censorship Law: an attack dog in sheep's clothing last week. A very good read on First Amendment issues. I have not had enough time to actually read the Bill in question.

That Evil Activist United States Supreme Court

I admit that I find the epithet "activist judge" to be one that losers use. When I am reading something like George Will's Bargain Basement Judiciary I get really honked off at intelleuctal dishonesty of statements like this:

Upon what meat hath our judiciary fed in growing so great? The meat of modern liberalism, the animating doctrine of the regulatory and redistributionist state. Courts have been pulled where politics, emancipated from constitutional constraints, has taken the law -- into every facet of life.

While I do not have time to go into this subject in detail right now, I can say this right now. The precedents that the United States Supreme Court used to nationalize our economy and our federal right came from those cases striking down state protections for its workers and state regulation of industries who happened to be involved in interstate commerce.

Mr. Will passes over that lengthy bit of history where Big Business controlled the federal government. Which looks like it will come back into power, if the following is any indication of what is really going on with the Supreme Court.

From Slate Magazine comes Big business's big Supreme Court term by Doug Kendall:

"With the Supreme Court term moving past the halfway mark, corporate America's long-term investments in the federal judiciary are yielding impressive returns. The U.S. Chamber of Commerce's Robin Conrad gushed about a 'hat trick' of Supreme Court victories one day in February, telling the Legal Times, 'I don't think I've ever experienced a day at the Supreme Court like that.'"

***

On that hat-trick day in February, the court issued three pro-business decisions, striking down state rules designed to prevent children from receiving cigarettes via the Internet (Rowe v. New Hampshire Motor Transport Association), blocking state courts from holding manufacturers liable for the harms caused by defective medical devices (Riegel v. Medtronic), and using a federal arbitration statute to protect corporations against state jury trials in contract disputes (Preston v. Ferrer). These were all "pre-emption" decisions, which means that the court found a conflict between a federal law and a state statute or decisions reached by state courts. In such a conflict, federal law trumps, and this led the court in these three cases to free corporations from state limits on their conduct.

From The New York Times comes Supreme Court Inc.:

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

***

What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business case

Book Review - Freedom of Religion

Something a little different but I think this New York Times' review is a good introduction to the law on the First Amendment's religion clauses: Liberty of Conscience.

"Constitution’s free exercise and establishment clauses, her premise is that “equality is the glue that holds the two clauses together.”A longtime enemy of elitism in a variety of guises, she fiercely resists the power of a majority religion, aided and abetted by the state, to create an in-group while subordinating out-groups. Nussbaum anchors the countervailing equality tradition in the writings of Roger Williams and James Madison. Williams, who had extensive friendly dealings with the Narragansett Indians, wrote into the charter for the Rhode Island colony a right to freedom of conscience that shocked the British. He coined the phrase “soule rape” for the limiting of religious expression that does not violate civil law or harm others."

Gay Marriage Amendment Dead

So reports the Indianapolis Star in Gay-marriage ban dies in House. Good riddance.

Pelath and opponents argue that the state already has a law banning same-sex marriages and that the amendment's language was ambiguous and could result in unintended consequences on issues including domestic violence protection and businesses' ability to recruit employees.

"This really is a very simple decision," Pelath said. "The reality is, we have no gay marriages in Indiana. It is against the law. Nobody has brought me evidence of a gay marriage taking place in this state.

"There's no reason to put very poorly crafted verbiage into our constitution, out state's highest document, that could potentially be a lawyer's dream with all sorts of unintended consequences."

Eric Miller, founder of the conservative activist group Advance America, blames Bauer, who he said has intentionally sent the amendment to Pelath's committee to kill it.

"It is a tragedy for the people of Indiana that one man, Speaker Pat Bauer, stopped the 100 members of the House (from) being able to vote to protect marriage and prevented the citizens of Indiana from having the opportunity to vote to protect marriage," Miller said. "It's not only a disappointment, it's wrong."

Pelath rejected that argument.

"That's not what our constitution says. It doesn't just say you throw out an idea and you throw it out for a vote -- that's not how we do it," he said. "We don't send everything up for referendum here. We make decisions and do our jobs. I'm abiding by the constitution."

I think this amplifies what Don Sherfick wrote over at Indiana Equality in Miller Time – not quite what it used to be:

But SJR7 still passed the Senate Judiciary Committee and the full Senate, though there is a reasonable argument that this was simply empty political theater because under Article 16 of the Constitution it had already done so in the same two-year term. It was obvious to those observing that Miller and his allies were hunkered down with the same slogan-filled rhetoric, and were again avoiding talking about statements by legal academics on their own side that contradicted claims about the acceptability and meaning of the fuzzy second sentence.