Archive for the 'Constitutional Law' Category
Thomas
Sunday, March 8th, 2009
The L.A. Times muses that Clarence Thomas might be a liberal -
“Clarence Thomas, Supreme Court liberal?”
Thomas is clearly a originalist, not a liberal or liberal activist. Politically he leans libertarian. I personally respect Thomas’s views and ruling more than any other Supreme Court justice, especially concerning the commerce clause. If you haven’t already picked it up, I highly recommend his book, it’s a great read.
Bans on Gay Marriage
Wednesday, November 5th, 2008
Unbelievable. Who knew the country was so homophobic. In Florida, the Constitutional ban exceeded the new 60% threshold for Constitutional changes, and in California, voters decided farm animals were entitled to better rights, but not gays. How screwed up is that?
Revisiting Kelo vs. New London
Thursday, November 30th, 2006
I was originally of the opinion that the textualist judges of the Supreme Court were at fault here. It stands to reason, if the suit in Kelo was specifically aimed at deciding whether or not a state government has the right to take property for public use, a textual interpretation says that they do in fact have it, assuming just compensation is provided to the owners.
Turns out the suit was more specific, and questioned whether a state government has the right to take property from a private owner and hand it over to another private entity for commercial development. The activists won out, in a 5-4 ruling:
On June 23, 2005, the Supreme Court, in a 5–4 decision, found for the City of New London. Justice John Paul Stevens wrote the majority opinion; he was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Kennedy also penned a concurring opinion setting out more detailed standards for judicial review of economic development takings than that found in Stevens’ majority opinion. In so doing, he contributed to the Court’s trend of turning minimum scrutiny–the idea that government policy need only bear a rational relation to a legitimate government purpose–into a fact-based test.
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Justice Sandra Day O’Connor wrote the principal dissent, joined by Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas. Justice O’Connor suggested that the use of this power in a reverse Robin Hood fashion—take from the poor, give to the rich—would become the norm, not the exception: “Any property may now be taken for the benefit of another private party, but 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.”
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Clarence Thomas also penned a separate originalist dissent, in which he argued that the precedents the court’s decision relied upon were flawed and that “something has gone seriously awry with this Court’s interpretation of the Constitution.” He accuses the majority of replacing the Fifth Amendment’s “Public Use” clause with a very different “public purpose” test: “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.’”
Strange world we live in isn’t it?
Voter ID
Thursday, September 21st, 2006
The ruling allows thousands of Georgians who do not have government-issued identification, such as driver’s licenses and passports, to vote in the Nov. 8 municipal elections without obtaining a special digital identification card, which costs $20 for five years. In prior elections, Georgians could use any one of 17 types of identification that show the person’s name and address, including a driver’s license, utility bill, bank statement or a paycheck, to gain access to a voting booth.
Two weeks ago I was sitting at a bar having a good conversation with some friends regarding Iraq. One of the people there was a citizen of the Netherlands. He voted in our last election.
I agree with the above Washington Post article - Georgia should not be charging for their voter ID cards, this easily passes as a “poll tax” and in as much, is unconstitutional thanks to the 24th Amendment. But I would challenge those who feel requiring proof of citizenship to vote is a violation of the 14th Amendment’s Equal Protection clause. That clause reads:
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. 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.
The problem is in making these IDs accessible to all. Somehow I don’t think thats going to happen. Simply doing the required checks when the person comes to vote is an option but I doubt we have the technology or a citizen database to accomplish this. We could also convert voter registration cards into photo ID cards, which might be the best answer. I honestly don’t know how to solve the problem but what I do know is that there are people out there who are not citizens voting in our elections. Until somebody can solve the problem without disadvantaging some, we’ll simply have to live with it.
Interestingly enough, there’s a bill threading it’s way through Congress which would require presenting a photo ID before being allowed to vote. Seeing as how non-citizens can get drivers licenses I don’t see how this solves anything. Here’s the text of that bill.
Guantánamo Detainees
Monday, September 18th, 2006
I was doing some digging in an effort to understand what’s been going on with the detainees down in Guantánamo. One of the thing I love about the internet is that you can go out and get the whole scoop, instead of relying on one sentence sound bites you normally get through the MSM. What I found was a wonderul little slice of American History regarding detainee treatment, military commissions for combative detainees, the Geneva Conventions, and the wonderful interworkings of our great system in figuring out how to deal with all the issues and arrive at a “just” policy. I found it all, very American. 
NPR article with the background: ‘Hamdan v. Rumsfeld’: Path to a Landmark Ruling
Washington Post article on the “McCain Amendment”, and the final Detainee Treatment Act of 2005 as included in the Department of Defense Appropriations Act, 2006 and signed by the President in December of 2005.
New U.S. Military “Human Intelligence Collector Operations” [PDF] manual as required by the DTA.
“By publishing this document and the Army Field Manual, we will have addressed over 95 percent of the recommendations from those 12 major investigations since Abu Ghraib,” Stimson said.
Amnesty International USA’s director, Larry Cox, said he was “pleased to see a direct repudiation of tactics previously approved for use against detainees such as hooding, the use of dogs,” as well as the acknowledgment that the Geneva Conventions apply.
NPR Article: Link
Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. … Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
Hamdan v. Rumsfeld ruling on Wikipedia
Newly proposed Military Commissions Act of 2006 [PDF]
Whitehouse Fact Sheet
Congress appears to be interested in voting on this before the elections, until then the Guantánamo detainees legal proceedings remain in limbo. Chances are some form of watered down version will be passed, and the detainees will be tried by the military.
Healthcare and The Constitution
Monday, August 21st, 2006
This morning I woke up wondering how on earth the Social Security Act could have come about without an amendment to the Constitution of the United States. Wikipedia provides the answer - FDR, packing of the Supreme Court, and “the switch in time that saved nine.” Wonderful. So essentially it’s not constitutional, but the Supreme Court was forced under duress to proclaim it so. This got me thinking, if the democrats are convinced the federal government must provide healthcare for the masses through a government funded single-payer system, do they intend on passing an amendment? I did a little reading on Kerry’s plan - part of which was to expand Federal Employees Health Care Benefits program, and part was to expand Medicaid. Since Medicaid was ruled constitutional by way of the SSA ruling, he might be able to squeak that one through. But expanding FEHCB? I would guess the Supreme Court would ultimately rule it as unconstitutional, and rightly so.
Update -
“The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer.” [Emphasis not added]
The general welfare clause, being but a part of a general provision of the Constitution, applies solely to the States “in their united or collective capacity.” If the Constitution had established a social compact or union between the American people, and they were the object of the general powers delegated to the federal government, then it would have been an absurdity to reference the States, in their united capacity, as the object of the general welfare phrase. In addition, if the Constitution had been established for the well being of the American people, then that same people would have been the “whole group” referenced in the general welfare phrase.
Based on the above definitions, Social Security should have been struck down because Congress used a provision of the Constitution that applied to the States, in their united capacity, and unconstitutionally applied it to the people. When Congress inserted the words “[a]n Act to Provide for the General Welfare” at the beginning of the Social Security Act, that body took a clause that granted Congress the power “[t]o lay and collect Taxes… to provide for the… group well being of all the United States” and twisted it into a power that granted Congress the power to tax and appropriate money for the general welfare generally. This was a gross usurpation of power.
I’ve been doing a little more reading on on the 1937 Helvering v. Davis decision. I imagine the proponents of federally sponsored healthcare will attempt to use the same flawed Welfare Clause argument FDR used in justifying a program like this, which is concerning. If passed, the question then becomes will the program be challenged, and if so, will the Supreme Court revisit the original 1937 ruling? It seems there’s a consensus that the ruling was made under duress and was not well founded, which makes me wonder how the Court would rule today. One concern that could surface if Helvering v. Davis is overturned - Social Security could seriously be threatended, which might give the Court pause. I guess it just goes to show how much damage one very overzealous President with very little respect for the Constitution can do.
The Role of the Federal Government
Wednesday, August 9th, 2006
Why should the responsibility of providing social welfare fall on the federal government? If states want to provide these services, tax the people and provide them. But don’t give all that money and power to what should be a very limited federal government, a federal government that is corrupt, wasteful, and unable to make decisions without watering everything down. The states need to take back some autonomy that they’ve lost, step up to the plate and do what their people ask them to do.
Laci and Conner’s Law
Thursday, July 27th, 2006
Unborn Victims of Violence Act
“I have serious concerns about this legislation because the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy.”
- John Kerry
I don’t agree with Kerry on much, but I certainly commend him for his stance on this law.
All Your Base - Eminent Domain
Wednesday, July 5th, 2006
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
On June 23, 2005, the Supreme Court, in a 5–4 decision, found for the City of New London. Justice John Paul Stevens wrote the majority opinion; he was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Kennedy also penned a concurring opinion setting out more detailed standards for judicial review of economic development takings than that found in Stevens’ majority opinion. Stevens said that local governments should be afforded wide latitude in seizing property for land-use decisions of a local nature. “The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue.” The decision pre-empted criticism of the possibility that the decision would be abused for private purposes by arguing that “the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.”
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Justice Sandra Day O’Connor wrote the principal dissent, joined by Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas. Justice O’Connor suggested that the use of this power in a reverse Robin Hood fashion—take from the poor, give to the rich—would become the norm, not the exception: “Any property may now be taken for the benefit of another private party, but 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.” She argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively deletes the words ‘for public use’ from the Takings Clause of the Fifth Amendment.”
A Costco vice president, in a frank letter to a shareholder in 2002, acknowledged that this was now normal operating procedure–that the company had initiated “dozens” of projects utilizing or threatening eminent domain to take away enough land from former tenants for its 148,000-square-foot stores. If Costco “refrained from participating in these deals,” the VP wrote, “our competitors for those sites, like Target, Home Depot, Kmart, Wal-Mart, BJ’s, Sam’s Club, and many others, would take advantage of our reticence.”
I was looking at property this weekend, including some near a site for a future “big box” store. I was wondering if eminent domain might cause trouble for an investment in the area down the road if I decided to hold the property for an extended period of time. Thankfully Florida passed a law explicitly preventing this type of abuse shortly after the Supreme Court ruling. Actually, an amendment was introduces, which passed in the November elections.
In thinking about it over July 4th, my opinion of eminent domain was probably the first ‘political’ decision I made in my life. (Although at the time I didn’t realize it.) I grew up in a rural area south of Denver, which was enveloped by the Denver Tech Center as I was growing up. My parents fought DTC development and encroachment often. I asked my dad once if we could just buy up a bunch of property to keep DTC from developing the area - he told me they could take it away anyway through the courts. That didn’t seem right to me at the time, and still doesn’t feel right today. You have to be careful though, sometimes you find yourself on the other side of the fence. One of the toughest things to do is apply your base principals in all cases. This got me thinking about how this country tends to apply it’s principals haphazardly - something I had to admit to myself I have been guilty of. Sometimes It’s tough to always “do the right thing.” That’s the great thing about a day like July 4th, makes you stop and think. I ended up spending part of the day re-reading The United States Constitution and the Amendments. Always a good read.
