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SCOTUS

Justice Ginsburg: “I Would Not Look to the U.S. Constitution”

Is it possible to impeach a Supreme Court justice?  Maybe we should look into that…

From The Heritage Foundation:

Conservatives are often ridiculed for criticizing activist judges who fail to respect the Constitution. We are told that it is not conservative originalists (labeled ignorant and extremist) but rather enlightened liberal judges—with their nuanced understanding of constitutional penumbras—who truly respect the spirit of the Constitution.

Conservatives, however, have good reason to be skeptical of the left’s “respect’’ for the Constitution. Just last week, for example, Supreme Court Justice Ruth Bader Ginsburg told an Egyptian TV station that she would not recommend the U.S. Constitution as model for Egypt’s new government.

The problem, you see, is that the U.S. Constitution is “a rather old constitution.” Ginsburg suggested that Egyptians should look instead to the Constitution of South Africa or perhaps the European Convention on Human Rights. All these are “much more recent than the U.S. Constitution.”

Ginsburg’s comments echo those by Washington University professor David Law, who published a study with Mila Versteeg on the U.S. Constitution’s declining influence worldwide. In an interview, Law unfavorably compared the Constitution to “Windows 3.1”—outdated and unattractive in a world of sleek and sexy modern constitutions. Such obsession with the age of the Constitution is both absurd and irrelevant.

For one, the Constitution is still among the shortest and most elegantly written constitutions in the world. By contrast, South Africa’s constitution is well over 100 pages long, filled with tables, schedules, and such stirring passages as detailed provisions for a Financial and Fiscal Commission: “A. National legislation referred to in subsection (1) must provide for the participation of – a. the Premiers in the compilation of a list envisaged in subsection (1) (b); and b. organized local government in the compilation of a list envisaged in subsection (1) (c).” And you thought the U.S. Constitution was hard to read.

Equally ridiculous is the claim that the Constitution is too antiquated to apply to the modern world. The principles of the Constitution, although first articulated centuries ago, are not tied to the material conditions of a bygone age. They rest on that most solid and enduring of all foundations: human nature. The Constitution itself contains no policy prescriptions. Rather, it is a short, elegantly written document that create a framework for a free people to confront the political questions of their times.

Of course, the real reason progressives swoon over South Africa’s constitution is that it goes far beyond merely establishing a framework for government and guarantees progressive policies—for example, by requiring legislation that prevents pollution and ecological degradation. In other words, the left’s real discontent with the U.S. Constitution is that it does not require Americans to adopt a progressive government and expansive welfare state that provides for every “right” social scientists can justify.

Americans should be very wary of those who would seek to upend the Constitution from the firm grounding in human nature that has allowed it to endure for more than two centuries and would transform it into an instrument devoted to policies of passing whimsy.

Landmark Supreme Court Ruling on Technology and the Fourth Amendment

From The Heritage Foundation:

On Monday, the Supreme Court issued an important ruling on the subject of surveillance in light of today’s technologies. Its opinion in United States v. Jones makes the rules for surveillance much less clear, which perhaps is not surprising given the rapid technological change and the need for further legislative and judicial action to address these complex new issues.

Law enforcement long has used surveillance to track the comings and goings of suspects, probationers, and parolees as well as suspected spies, terrorists, and the like. Surveillance was oftentimes necessary and always valuable to make a case. Surveillance also helps law enforcement learn when a crime is about to occur so that the police can prevent it or catch the perpetrators. The actual conduct of surveillance traditionally involves “shoe leather,” binoculars, cars, and cameras, with a team of cops following a suspect as he travels about.

Traditional surveillance did not raise many novel legal issues. Over 50 years, the Supreme Court had repeatedly ruled that what a person exposes to the public—e.g., his location on city streets—is public information that the government may freely use for any lawful purpose.

Monday’s decision changes that rule. Because the federal government suspected Antoine Jones of drug trafficking, it attached a Global Positioning System (GPS) tracking device to the undercarriage of his wife’s car, tracked his whereabouts for about 30 days, and used that evidence against him at trial. The Supreme Court decided that attachment and use of that device to monitor Jones’s movements constituted a “search” for purposes of the Fourth Amendment. Placement and use of a GPS device on Jones’s car was a trespass on his property by the government, the Court reasoned, which amounts to a “search.”

It is most likely that the Supreme Court found troubling the government’s ability to keep track of anyone and everyone through use of modern-day technology, particularly a GPS device. The Court mentioned the fact that the police in the Jones case used visual surveillance and a fixed camera as part of the investigation, and the Court did not criticize the use of those longstanding techniques. The reason may be due in part to their inherent limitations, not just because they do not involve a trespass. There has always been a practical limit on the number of police officers that could be assigned to a particular surveillance operation, the number of cameras that can be installed in public areas, and the amount of time that a person would expose himself to public surveillance. Those practical limitations create less public and judicial angst when the police use those surveillance practices, which affects how the public and courts feel about their use without prior judicial authorization.

Modern-day electronic surveillance devices, however, explode those limitations. The difference between using shoe leather or a Crown Vic to follow a suspect and a GPS device for surveillance is a difference in kind, not degree (or, if it is a difference in degree, it’s like the difference between a body temperature of 98.6 degrees Fahrenheit and one of 28.6 degrees). The problem is that technology has so enhanced the ability of law enforcement to track someone—whether through security cameras spread throughout a city; bank deposits and withdrawals; credit card transactions; vehicle, school, employment, and financial databases; facial recognition software; and so forth—that the old paradigm no longer may apply. From here on out, whenever the government overcomes the physical limitations on human observation by using any newfangled contraption, the claim will be made that use of the device is a “search.”

That much is certain. How the Fourth Amendment regulates surveillance after Jones, however, is an open question. The Court limited its decision to both the GPS device used on Jones’s car and the narrow legal issue raised by his case. The implications of what the Court held, however, are far broader than the case itself. Does Jones require that traditional surveillance techniques also be treated as a search? Must the police obtain a search warrant before using a GPS device? And what rule applies when the government uses such equipment to watch suspected terrorists (or spies) rather than street thugs? Expect to see a flurry of litigation over these types of questions in the months to come.

Will the Supreme Court stop the EPA?

From Hot Air:

Mike and Chantell Sackett thought that they had achieved the American dream of not just owning their own home, but building one themselves.  They bought a parcel of land zoned for residential construction in Idaho that was slightly larger than a half-acre and began construction on the house.  The EPA stopped them from proceeding by informing the Sacketts that their land was considered federally-protected wetlands, and that not only would they have to cease construction, they were required to return the land to the same condition as they had found it.  Each day that they failed to do so, the EPA could fine them $32,500.  The only way they could challenge this ruling is if the EPA sought judicial enforcement of the order, which the EPA is not inclined to do for obvious reasons and which would take years anyway.

Next month, Reason’s Damon Root reports, the Supreme Court will hear arguments in Sackett v EPA, and it has an opportunity to return private property rights to their proper standing (via our Townhall colleague Helen Whalen Cohen):

The Fifth Amendment to the U.S. Constitution declares that no person shall be “deprived of life, liberty, or property, without due process of law.” This means that if the government infringes on your rights, you are entitled to mount a timely and meaningful defense of those rights in court. It’s one of the cornerstones of our entire legal system, with roots dating back at least as far as the Magna Carta, which declared, “No free man…shall be stripped of his rights or possessions…except by the lawful judgment of his equals or by the law of the land.”

Unfortunately, the Environmental Protection Agency (EPA) prefers a less venerable form of justice, as the Supreme Court will hear next month during oral arguments in the case of Sackett v. Environmental Protection Agency. At issue is the EPA’s enforcement of the Clean Water Act through so-called administrative compliance orders, which are government commands that allow the agency to control the use of private property without the annoyance of having to subject its actions to judicial review. …

Read the rest at Hot Air.

Kagan Confirmed, Decades of Bad Votes and Opinions to Follow

From Power Line:

The Senate has confirmed Elena Kagan. The vote was 63-37. Five Republicans joined every Democrat except Ben Nelson to vote “yes.” The five Republicans were, as expected, Senators Snowe, Collins, Graham, Gregg, and Lugar.

The “no” vote tally was pretty high — up from 31 in Sotomayor’s case — but there’s really no way for conservatives to put a positive spin on Kagan’s confirmation.

To get a sense of what it means, think of the three big constitutional decisions rendered by district courts in the past week or two. They are: (1) Judge Bolton’s grant of a preliminary injunction blocking key portions of Arizona’s immigration enforcement law, (2) Judge Hudson’s ruling permitting the Commonwealth of Virginia to proceed with its lawsuit challenging the portion of Obamacare that requires individuals to purchase insurance, and (3) Judge Walker’s outrageous ruling that California’s Proposition 8, which bans gay marriage, is unconstitutional.

If these matters reach the Supreme Court, as seems likely, I have no doubt that Kagan will side with those who challenge the Arizona immigration law and Proposition 8, and with the government in the case of Virginia’s challenge to Obama care. But that’s just the tip of the iceberg — probably less than one year’s worth of bad jurisprudence. Kagan is only 50 years old, so we can expect at least 25 years of the same sort of leftist assault on our traditional freedoms and the rights of our states.

The only way Kagan’s confirmation doesn’t become a disaster is if we are able to elect Republicans presidents pretty consistently during the next 22 years or so, starting in 2012, and thus can keep Kagan busy writing dissents.

Kagan’s Double Standard

From Big Government:

Despite Elena Kagan’s impressive “evasiveness,” observers have noted a loose and shifting commitment to the principle of free speech. But her position, and that of liberal legal academics, is really quite simple: She favors free speech for the right people but not for the wrong people, for the right interests but not for the wrong interests.

The whole project of modern liberalism has been to distribute “rights” in ways that liberals deem socially valuable. This rejects the founders’ view that God and/or Nature endowed individuals with rights, which governments are instituted to protect. Twentieth century progressives and liberals believed instead the governments distribute rights according to elites’ sense of social good.

The founders had a holistic, “seamless garment” view of rights. The made no distinction between property rights and free speech rights. Rather, land, capital, money or other tangible economic rights were simply one facet of “property,” which included anything, tangible or intangible, to which one could claim ownership. This is the meaning of the Latin root of the word, proprius, a possessive pronoun meaning “mine.” When John Locke used the term “property,” he meant this—everything to which one had a right. When he spoke of land, capital, chattels, or money, he used the term “estates.”

James Madison echoed this in a 1792 essay. “It embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…. A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

 The progressives developed a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. The progressives were able to get the Supreme Court to abandon the protection of economic rights, while preserving judicial review for non-economic rights. It did so in a very famous footnote to a decision in which it upheld a congressional act prohibiting the interstate shipment of “filled milk” (an interesting story in itself—another place where the dairy lobby has left its mark on constitutional law).

Read the rest at Big Government.

Fact: Kagan is Anti-Second Amendment

From RedState:

President Obama’s nominee to the U.S. Supreme Court is hostile to the 2nd Amendment.  That is a fact.  Clear and convincing evidence in the public domain proves that fact.  If you hear the left argue that Elena Kagan is not hostile to the 2nd Amendment, know that those claims are proven incorrect by Kagan’s testimony before the Senate Judiciary Committee and her lifetime of anti-gun activism.

Media Matters for America has put out a propaganda sheet claiming that it is a myth that President Obama’s nominee to the Supreme Court, Elena Kagan, is anti-Second Amendment.  Kagan has spent her professional career implementing anti-gun initiatives as a clerk to Justice Thurgood Marshall, as counsel for the Clinton Administration and as President Obama’s Solicitor General.  Furthermore, Kagan’s testimony before the Senate Judiciary Committee confirms a hostility to the idea that the 2nd Amendment is an individual right of all Americans incorporated against state action restricting that right.  The fact of the matter is that Elena Kagan will vote to uphold every local, state and federal restriction of the right of Americans to “keep and bear Arms.”

Kagan wrote the following in a memorandum dated August 27, 1987 from her to Justice Thurgood Marshall in the Sandidge v. U.S. case.

A jury convicted petr of carrying a pistol without a license possession of an unregistered firearm, and unlawful possession of ammunition The CA affirmed. Petr’s sole contention is that the District of Columbia’s firearm statutes violate his constitutional right to ‘keep and bear Arms.’ I’m not sympathetic.

Media Matters claimed out with the claimed that the Drudge Report highlighted Kagan’s quote “I’m not sympathetic” out of context.  MM claims ”the Drudge Report highlighted the following out-of-context Kagan quotes to falsely suggest that Kagan’s statements indicate her views on gun rights are outside the mainstream – ‘I’m not sympathetic’ to the claim of a defendant who argued that his Constitutional rights were violated in a case.”  The full Kagan memo is devoid of any legal analysis nor any case citations for the assertion that she is not “sympathetic” to the petitioner’s Second Amendment claim.  Kagan expressed her personal view that she is not “sympathetic.”  Kagan did not write that the law was not sympathetic to the petitioner’s claim.  She did not write that she was not sympathetic because of Supreme Court precedent.  Kagan expressed a personal hostility to the Constitutional claim without a written legal basis for the claim.  This is merely one piece of evidence that Kagan is hostile to the 2nd Amendment – there is more.

Read the rest at RedState.

The Supreme Court, Elena Kagan, and Guns

From Big Government:

This week’s historic Supreme Court case on gun rights has pivotal implications for Elena Kagan’s Supreme Court confirmation hearings. From now on, the biggest battles over the Second Amendment will be won or lost in the Supreme Court.

In the 2008 case D.C. v. Heller, the Supreme Court held 5−4 that the Second Amendment secures an individual right to own a gun. But because the Bill of Rights only applies directly to federal laws (such as those in D.C.), Heller only made the Second Amendment a right against the federal government.

On June 28 of this year in McDonald v. Chicago, a new 5−4 Supreme Court decision held that the individual right to own a gun from Heller is a fundamental right, and as such extends through the Fourteenth Amendment as a right against state and local governments as well.

Justice Stephen Breyer wrote a dissent that Justices Ruth Bader Ginsburg and Sonia Sotomayor joined in full. (Justice John Paul Stevens wrote a separate dissent.) That dissent contains a telling revelation about Barack Obama’s Supreme Court.

When Sotomayor was nominated for the High Court last year, she was asked by Judiciary Committee Chairman Pat Leahy (D−VT) whether after Heller it is now a matter of settled law that the Second Amendment secures an individual right to own a gun. Her answer was clear and direct: “Yes, sir.”

Read the rest at Big Government.

Protecting the Second Amendment (But Just Barely)

From The Heritage Foundation:

In what is probably the most important Second Amendment case in Supreme Court history, the Court today held that the “right of the people to keep and bear Arms” cannot be infringed by the states. In 2008 in District of Columbia v. Heller, the Court for the first time held that the right to bear arms was an individual right. But that decision, which struck down a virtual ban on handguns and a requirement that rifles and shotguns had to be kept “unloaded and disassembled or bound by a trigger lock” in the District of Columbia, applied only to the federal government because the District is a federal enclave. What had never been decided before today’s decision in McDonald v. Chicago was whether the protection of the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause to apply to state and local governments.

In a long-awaited decision on the final day of the Supreme Court’s term, a 5-4 majority of the Court in an opinion written by Justice Alito overturned the City of Chicago’s regulations on firearms. These regulations included a ban on handguns, a requirement that other guns be registered prior to their acquisition (which is impractical in many cases), a burdensome annual reregistration requirement and annual fee, and a punitive provision that would bar the reregistration of a gun once its registration expired.

The opinion holds that the right to keep and bear arms is among the most fundamental rights necessary to this Nation’s system of ordered liberty and is deeply rooted in our history and tradition. Thus, it applies to the states through the Due Process Clause of the Fourteenth Amendment.

Read the rest at The Heritage Foundation.

NRA Issues Gag Order to Its Board Members on Elena Kagan

From RedState:

Internal Senate emails confirmed by NRA Board Members are highlighting just how far the National Rifle Association has fallen.

The organization recently collaborated with the left to obtain a carve out of the DISCLOSE Act, legislation designed to silence bloggers and outside interest groups like tea party activists. This was a first amendment issue and the NRA gladly took a position and campaigned for its members to take a position on the DISCLOSE Act.

One of the NRA’s chief arguments was that it needed the carve out to be effective in its advocacy of Second Amendment issues. But here’s the problem: these internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings.

That’s right: the foremost gun rights lobby in the nation is prohibiting its board from testifying in the Elena Kagan confirmation hearings about the second amendment.

Read the rest at RedState.

The Kagan Rush to Judgment

From The Heritage Foundation:

The Senate hearing for Supreme Court nominee Elena Kagan starts on Monday, June 28.  Senator Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee, has refused Republican requests to delay the hearing.  The Republicans have a very good and justified reason for that request – the huge number of documents that they have just been inundated with, a volume of material so large that it will be virtually impossible for the Senators and their staff to give them any meaningful review prior to the hearing.  But then, that may be the very reason that Senator Leahy has refused to reschedule Kagan’s hearing.

Read the rest at The Heritage Foundation.

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The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet’ and `Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free. — John Adams, A Defense of the American Constitutions, 1787

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