Category Archives: The Bill Of Rights

Obama, Gates, Crowley, and the Troubling Controversy that Seemingly Won’t Go Away

Up to now I have purposely avoided this whole disorderly conduct arrest of Henry Louis Gates Jr. for a number of reasons.

First reason being that compared to the other cases I’ve written about here and elsewhere, this is a very minor case of police misconduct. I have yet to read or hear any reports that Mr. Gates was roughed up even a little bit.

Second, Mr. Gates seems like a real ass. Gates seems to be someone who has a chip on his shoulder and apparently views the world in black and white (i.e. if the police as much as ask a question, s/he is a racist!). A woman saw 2 men trying to break into Gate’s home; unbeknownst to the woman, one of the men was the resident of the home. The woman even said as much on the 911 call:

“I don’t know what’s happening. … I don’t know if they live there and they just had a hard time with their key, but I did notice they had to use their shoulders to try to barge in…”

Now some people are calling her a racist for making the call to the police to begin with!

Third, like President Obama, I “don’t have all the facts” but unlike the president, I’m not going to say definitively that the police “acted stupidly.” There are no videos that documented the encounter and I wasn’t there so I cannot make a judgment as to who acted stupidly or to what degree. My best guess, based on what I have read about the case, is that both Mr. Gates and Sgt. Crowley acted inappropriately and overreacted.

So why have I decided to weigh in now you ask? I think the reason has to do mostly with the fact that this story won’t go away and with so much commentary in the MSM, talk radio, and the blogosphere, I can’t help but offer my 2 cents because certain aspects of this saga trouble me.

I am troubled that this case has turned into a race issue. This was not a case where a white police officer pulled over a black man for DWB. The police responded to a 911 call of a possible break in. This is what the police are supposed to do!

I am troubled that the president would make a public statement without knowing more about the facts of the case. For whatever reason, President Obama thought that this would be the perfect opportunity to opine about the historically troubled relationship between racial minorities and the police. Whether or not the president has a legitimate case to make, this case is not what I would consider a good example of the police racial profiling. What he should have said was something like: “Mr. Gates is a friend of mine but I don’t know all the facts; it would be inappropriate for me to comment about this case at this time.”

I am troubled that (apparently) the police did not leave Mr. Gates home once he identified himself as the home’s rightful resident, thus proving no crime had been committed.

I am troubled with how the police can apparently arrest someone for disorderly conduct for just about any reason they wish. While I do believe that Mr. Gates acted like an ass…since when is that a crime? Sure, he yelled some nasty things at the police when he should have been thanking them for investigating what appeared to be an unlawful break in, but how is making his displeasure known to the police disorderly conduct? I believe Doug is right: arresting Gates in this case was an unconstitutional voilation of his civil rights.

I am troubled by the way certain commentators such as Glenn Beck have gone off the deep end on Obama’s handling of this case, even going as far as calling the president a racist. I didn’t like it when people called Bush a racist and I don’t like it when people call Obama a racist*. That is a hell of a nasty charge to make of anyone (and if one does make that charge, they should have some damn good proof). Like I said before, Obama mishandled this situation but to say he is racist for commenting on race relations with the police (however inappropriate in using this case as an example) is a bridge too far.

I am troubled that other commentators say that because Obama said that the police “acted stupidly” that this is a slap in the face to police officers everywhere…as if he called all police officers stupid. What complete nonsense. I think its worth pointing out that Obama called the actions of the police stupid; he did not call the police stupid. This is a very important distinction. Even the most intelligent, honest, and morally upstanding individual acts stupidly at times. Not even college professors, police officers, or world leaders are immune from this.

Yes, this is indeed a teaching moment. Its just too bad that too many people seem to be learning the wrong lessons.

» Read more

The Arrest Of Henry Louis Gates Was Unconstitutional

So says Fox News Channel Legal Analyst, and former Judge, Andrew Napolitano:

Civil liberties attorney Harvey Silvergate agrees:

Under well-established First Amendment jurisprudence, what Gates said to Crowley–even assuming the worst–is fully constitutionally protected. After all, even “offensive” speech is covered by the First Amendment’s very broad umbrella

(…)

Today, the law recognizes only four exceptions to the First Amendment’s protection for free speech: (1) speech posing the “clear and present danger” of imminent violence or lawless action posited by Holmes, (2) disclosures threatening “national security,” (3) “obscenity” and (4) so-called “fighting words” that would provoke a reasonable person to an imminent, violent response.

As Silvergate goes on to discuss in an article well-worth reading, none of these four exceptions can reasonably be said to have applied to the confrontation between Crowley and Gates. Additionally, as Jacob Sullum notes, neither would Massachusetts state law on disorderly conduct justify the arrest in this case:

In Massachusetts, as in many states, the definition of disorderly conduct is drawn from the American Law Institute’s Model Penal Code. A person is considered disorderly if he “engages in fighting or threatening, violent or tumultuous behavior…with purpose to cause public inconvenience, annoyance or alarm” or “recklessly creates a risk thereof.”

Crowley claims Gates recklessly created public alarm by haranguing him from the porch of his house, attracting a small crowd that included “at least seven unidentified passers-by” as well as several police officers. Yet it was Crowley who suggested that Gates follow him outside, thereby setting him up for the disorderly conduct charge.

It’s hard to escape the conclusion that Crowley was angered and embarrassed by Gates’ “outburst” and therefore sought to create a pretext for arresting him. “When he has the uniform on,” Crowley’s wife later told The New York Times, “Jim has an expectation of deference.”

As the Massachusetts Appeals Court has noted, “the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others.” Yet police officers often seem to think the purpose of such laws is to punish people for talking back to cops.

And yet, that’s not what the law says, as Massachusetts’ highest Court has recognized:

The officers’ presence, alone, did not suffice to prove the public element, regardless of any concern they may have felt as they witnessed the defendant’s confrontation with Sergeant Boss. As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, “one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses.” Model Penal Code § 250.2 comment 7, at 350. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct.(9)

In other words, the mere act of talking back to a cop does not constitute a crime and should not justify arrest.

Gates was a hothead, but Crowley stepped outside the bounds of his Constitutionally-limited authority.

Common Ground for the Left and the Right on the Bill of Rights

SCOTUS Returns to Sanity in School Strip Search Case

It seems that most of the time the U.S. Supreme Court is divided 5-4 on what should be very basic Constitutional principles (such was the case I wrote about in my most recent post). But once in awhile, SCOTUS does the unthinkable and actually upholds the Constitution. In Safford Unified School District #1 et. al. v. Redding, the court ruled 8-1 that the school district had violated then 13 year-old Savana Redding’s Fourth Amendment rights against unreasonable searches.

Reuters Reports:

“Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution,” Justice David Souter wrote for the court majority.

The school’s policy prohibits the use, possession or sale of any drug on school grounds, including prescription and over-the-counter medications. A week before the search, a student became sick after taking pills from a classmate and said certain students were bringing drugs to school.

Following an assistant principal’s orders, a school nurse had Redding remove her clothes, move her bra to the side and pull her underwear out, exposing her breasts and pelvic area, to see if she was hiding any ibuprofen pills.

[…]

Only Justice Clarence Thomas dissented from the part of the ruling that Redding’s privacy rights had been violated.

Thomas said the ruling “grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge.”

While the court agreed that the school district violated Redding’s privacy rights, only Justices Ginsburg and Stevens believed the school administrators should be held liable; the remaining Justices believed that prior to this ruling, the law had not been clearly established.

The ACLU attorney Adam Wolf who represented Redding was also quoted in the article saying: “Today’s ruling affirms that schools are not constitutional dead zones. Savana … is pleased that other students will not have to go through the trauma that she experienced.”

I think we sometimes forget that public school teachers and administrators are actually agents of the government. At times, schools have become “constitutional dead zones” but we should always remember that government agents of all kinds should be expected to respect legitimate rights of students. If the school administrators had good reason to believe that Redding had contraband, they could apply for a search warrant and allow the proper authorities to conduct the search.

SCOTUS: No Constitutional Right for DNA Testing Post-Conviction

Last week in District Attorney’s Office for the Third Judicial District et. al. v. Osborne the U.S. Supreme Court ruled 5-4 that convicts have no Constitutional right to DNA testing even if such testing would conclusively determine the guilt or innocence of the convict. In this particular case, William Osborne was willing to pay for the DNA test at his own expense but the DA’s office refused to allow Osborne to have access to the sample. Roberts, writing for the court’s majority joined by Thomas, and Scalia, ruled against Osborne because of lack of legal precedents and that Osborne did not avail himself of the available evidence and technological advances at the time of trial. Alito with Kennedy joining wrote a concurring opinion in which Alito worried that allowing Osborne to have access to his DNA sample would flood the criminal justice system with demands that more DNA evidence be preserved. Both opinions stressed that the domain for making guidelines for DNA preservation and testing would better be handled by state legislatures rather than the federal courts.

First, some excerpts from Justice Roberts:

A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera v. Collins, 506 U. S. 390, 399 (1993). “Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Dumschat, supra, at 464 (internal quotation marks and alterations omitted). (p. 15)

Osborne seeks access to state evidence so that he can apply new DNA-testing technology that might prove him innocent. There is no long history of such a right, and “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303 (1993). (p. 19)

Establishing a freestanding right to access DNA evidence for testing would force us to act as policy makers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).

In this case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite. See Collins, supra, at 125; Glucksberg, supra, at 720.” (p. 20 & 21)

I think Roberts is making this issue more complicated than necessary. As he points out, the evidence has been preserved. There is no need to get into “policy making” to say that the DA must allow Osborne access to the sample that the DA physically possesses. And even if the presumption of innocence disappears and the burden of proof falls on Osborne to prove his innocence, how can he possibly attempt to do so without having the sample?

Now an except from Alito:

Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent’s guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim […]

[…]

[E]ven though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.” (p. 1 & 2)

Stevens in his dissent (joined by Ginsburg and Breyer; Souter filed a concurring opinion) responded to the majority opinion as follows:

The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all. (p. 1)

The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence¶2 (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”);see also Meachum v. Fano, 427 U. S. 215, 230 (1976) (STEVENS, J., dissenting). The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government.” Hamdi v. Rumsfeld, 542 U. S. 507, 529 (2004) (plurality opinion); see Foucha v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause”).

Although a valid criminal conviction justifies punitive detention, it does not entirely eliminate the liberty interests of convicted persons. For while a prisoner’s “rights may be diminished by the needs and exigencies of the institutional environment[,] . . . [t]here is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U. S. 539, 555–556 (1974); Shaw v. Murphy, 532 U. S. 223, 228–229 (2001) (“[I]ncarceration does not divest prisoners of all constitutional protections”). Our cases have recognized protected interests in a variety of post conviction contexts, extending substantive constitutional protections to state prisoners on the premise that the Due Process Clause of the Fourteenth Amendment requires States to respect certain fundamental liberties in the post conviction context. See, e.g., Thornburgh v. Abbott, 490 U. S. 401, 407 (p. 7 & 8)

Wow, if I didn’t know any better, I would think Stevens was of a libertarian or Lockean ideology because I think he is spot on in this case. There are times whenever “judicial activism” is necessary whenever state legislatures fail to uphold due process and other Constitutional protections.

Stevens continues:

The fact that nearly all the States have now recognized some post conviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court. (p. 9)

Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent. Because Osborne has offered to pay for the tests, cost is not a factor. And as the State now concedes, there is no reason to doubt that such testing would provide conclusive confirmation of Osborne’s guilt or revelation of his innocence.7 In the courts below, the State refused to provide an explanation for its refusal to permit testing of the evidence, see Brief for Respondent 33, and in this Court, its explanation has been, at best, unclear. Insofar as the State has articulated any reason at all, it appears to be a generalized interest in protecting the finality of the judgment of conviction from any possible future attacks. See Brief for Petitioners 18, 50.8 (p. 11)

In other words, if the state properly convicted the right person, what is the state so afraid of?

It seems to me obvious that if a wrongly convicted person were to produce proof of his actual innocence, no state interest would be sufficient to justify his continued punitive detention. If such proof can be readily obtained without imposing a significant burden on the State, a refusal to provide access to such evidence is wholly unjustified. (p. 13)

It’s really is too bad that Stevens’ opinion did not carry the day. It’s also too bad that Osborne was the test case for this very important issue (Osborne is not what most might consider a sympathetic person; even if he was proven innocent of these charges, he faces other charges unrelated to this case). It doesn’t seem right that the Supreme Court would allow the state to withhold exculpatory evidence which would lead to the truth. Isn’t getting to the truth the point of our criminal justice system?

Quote Of The Day

The Sheriff whose deputies raided Berwyn Heights, MD mayor Cheye Calvo’s house predictably doesn’t think they did anything wrong. He said a lot of pretty despicable things in that article, but this one really bothers me:

“I’m sorry for the loss of their family pets,” Jackson said. “But this is the unfortunate result of the scourge of drugs in our community. Lost in this whole incident was the criminal element. . . . In the sense that we kept these drugs from reaching our streets, this operation was a success.”

What criminal element? The mayor? His wife? His elderly mother-in-law? The two labrador retrievers they shot?

Did they suspect Calvo was a drug-runner? Obviously not, because they ALREADY knew the drugs were intended (from an on-going investigation) for a false drop.

If there’s a criminal element, don’t you think it might be the guys, dressed in black, who busted down the door of a law-abiding citizen, terrorized his family, and shot his dogs? All without even a cursory investigation to see if they’d done anything wrong other than having their own address on a package that even the cops weren’t sure was intended for them?

This isn’t the result of the scourge of drugs or the criminal element. This is the result of shoddy police work. This Sheriff should be ashamed of his wanton disregard for logic and humanity.

Charles Lynch Sentenced to 1 Year and 1 Day in Prison

Read the news story here and reason‘s coverage here. The video below is Lynch’s response:

While I’m not happy that Mr. Lynch is doing time for legally dispensing marijuana under California’s compassionate use law, he certainly could have received a much harsher sentence (up to 100 years). U.S. District Judge George Wu should be commended for finding an exception to the 5 year mandatory minimum sentence and reducing it to a relatively reasonable sentence of 1 year. That’s probably the best he could do under the circumstances.

There is however, one person who can correct this injustice perpetrated by the Bush Justice Department: President Obama. I urge all those who support the Tenth Amendment to join me in calling on President Obama to pardon Charles Lynch. Federalism is a much larger principle in this case than medical marijuana or even the war on (some) drugs. The State of California (whether one agrees or not with using marijuana for medicinal purposes), passed a law the federal government did not like. This law does not violate the U.S. Constitution and is, therefore, beyond the reach of the federal government according to the Tenth Amendment.*

Furthermore, President Obama and his Attorney General Holder have both said on several occasions that the federal raids on these dispensaries would end provided the operators are not violating both state and federal law. A full pardon of Charles Lynch would go a long way toward reversing a bad policy from the previous administration.

» Read more

Quote of the Day: Sotomayor’s “Pro-State Bias” Edition

This article in The Boston Globe about Sonia Sotomayor ought to delight “tough on crime” conservatives and cause great concern for civil libertarians of all stripes. Prosecutors and law enforcement organizations give her high marks for her “aggressiveness” both as a prosecutor and as a judge.

One quote from the article stood out and seems to support what I wrote about her in a post I wrote last week:

“[Sotomayor] certainly doesn’t seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.” – Law Professor and Sentencing Expert Doug Berman

I take exception to the “pro-criminal” part of the quote because in our system (at least in theory), individuals are innocent until proven guilty. Beyond this, I am troubled that a nominee for the Supreme Court would show a detectable bias toward either toward the prosecution or the defense. The only bias a judge should have should be toward the Constitution (the Bill of Rights in-particular).

This is one bias Judge Sotomayor appears not to have.

The Limits of Campaign Finance Law Abridgement of the First Amendment Tested in Citizens United v. Federal Elections Commission

During the 2008 presidential campaign, an organization called Citizens United produced an anti-Hillary documentary called “Hillary: the Movie.” The movie was available on pay-per-view cable channels until the FEC pulled the plug claiming that the broadcast violated campaign finance law. The case, Citizens United v. Federal Elections Commission, is now being considered by the Supreme Court.

During oral arguments, the government’s attorney revealed that campaign finance law as currently written could be interpreted to restrict not only documentaries such as “Hillary” but any other political speech “broadcast” during a campaign. A banned “broadcast” could include a store advertising the sale of candidate dolls, toys, or action figures. Even if the advertisement makes no direct endorsements nor advocates the defeat of a candidate, the mere mention of a candidate’s name or likeness would violate current election law.

But surely books would be safe…right?

Not if the book is “broadcast” on a device such as a Kindle, says the government’s attorney. While the FEC believes “dead tree editions” are currently safe from FEC regulation, former Chief of Staff and Council of the FEC Allison Hayward, says that such regulations could be imposed if congress brought such an interpretation into the law.

In the very beginning of the video below, Steve Simpson, Senior Attorney for the Institute for Justice says something which bears repeating here because he captures exactly the First Amendment problems found in current campaign finance law:

“The problem is not too much money in politics; the problem is too much power in government. Government regulates everything and of course, people want to affect the course of the government. So the campaign finance reformers ultimately what they want to prevent is that. It’s the ability to affect the course of our government; it’s the ability to affect which way people vote. That’s the dirty little secret of campaign finance law. They don’t just want to control money, they want to control speech.”

I would like to believe that free speech will ultimately prevail in Citizens United v. Federal Elections Commission, but given SCOTUS’s history, ruling on the side of the Constitution is by no means sure thing. I also can’t help but wonder how an Obama appointed Justice would rule if this case was before him or her. Which side would receive the most “empathy,” the federal government or a private organization or individual citizen? We already know that such a judge would not be considering “abstract legal theories” such as entailed in the First Amendment.

Southern Baptists condemn torture, including waterboarding

In a move very surprising to this veteran of far too many southern talk radio programs where I was the one condemning torture to a hostile audience, the Southern Baptist Convention’s Ethics and Religious Liberty Commission has just condemned torture.

“I don’t agree with the belief that we should use any means necessary to extract information,” said SBC Ethics and Religious Liberty Commission president Richard Land. “I believe there are absolutes. There are things we must never do under any circumstances.”

Furthermore, they clearly indicated that waterboarding is indeed an act of torture:

“For me the ultimate test is: Could I, in good conscience, do whatever I am authorizing or condoning others to do? If not, then I must oppose the action. If I could not waterboard someone—and I couldn’t—then I must oppose its practice.”

Land said he considers waterboarding to be torture because the definition of torture includes the determination of whether a procedure causes permanent physical harm, noting he is unable to “separate physical from psychological harm” in this instance. The practice contravenes an individual’s personhood and their humanity, he said.

“It violates everything we believe in as a country,” Land said, reflecting on the words in the Declaration of Independence: that “all men are created equal” and that “they are endowed by their Creator with certain unalienable Rights.”

“There are some things you should never do to another human being, no matter how horrific the things they have done. If you do so, you demean yourself to their level,” he said.

“Civilized countries should err on the side of caution. It does cost us something to play by different rules than our enemies, but it would cost us far more if we played by their rules,” Land concluded.

To begin, I’d like to applaud the Southern Baptist Convention for taking this stand.  Based on my anecdotal observations, this won’t be popular with the let’s-waterboard-them-another-hundred-times crowd.  However, some of their members may now think through the issue or gain the courage to publicly oppose acts of torture.

While this condemnation is clearly many days late, it’s not a dollar short.  Perhaps it’s time to welcome the Southern Baptists into the fold of people who like to have rational and reasonable debate over issues of a political nature.  Or perhaps not.

The Latest Victim Of The PATRIOT Act: A 16 Year-Old Kid

Remember when we were told in the wake of the September 11th attacks that the extraordinary surveillance and investigative powers being granted to the Federal Government were intended solely to protect us from terrorist attacks ?

Well, perhaps someone can explain exactly how a 16 year-old in North Carolina constitutes a terrorist threat:

Oxford, N.C. — Sixteen-year-old Ashton Lundeby’s bedroom in his mother’s Granville County home is nothing, if not patriotic. Images of American flags are everywhere – on the bed, on the floor, on the wall.

But according to the United States government, the tenth-grade home-schooler is being held on a criminal complaint that he made a bomb threat from his home on the night of Feb. 15.

The family was at a church function that night, his mother, Annette Lundeby, said.

“Undoubtedly, they were given false information, or they would not have had 12 agents in my house with a widow and two children and three cats,” Lundeby said.

Around 10 p.m. on March 5, Lundeby said, armed FBI agents along with three local law enforcement officers stormed her home looking for her son. They handcuffed him and presented her with a search warrant.

“I was terrified,” Lundeby’s mother said. “There were guns, and I don’t allow guns around my children. I don’t believe in guns.”

Lundeby told the officers that someone had hacked into her son’s IP address and was using it to make crank calls connected through the Internet, making it look like the calls had originated from her home when they did not.

Her argument was ignored, she said. Agents seized a computer, a cell phone, gaming console, routers, bank statements and school records, according to federal search warrants.

“There were no bomb-making materials, not even a blasting cap, not even a wire,” Lundeby said.

And yet her son remains in custody in a juvenile facility in Indiana and the government doesn’t even feel obligated to explain the charges against him:

Passed after the Sept. 11, 2001, terrorist attacks on the U.S., the Patriot Act allows federal agents to investigate suspected cases of terrorism swiftly to better protect the country. In part, it gives the federal government more latitude to search telephone records, e-mails and other records.

“They’re saying that ‘We feel this individual is a terrorist or an enemy combatant against the United States, and we’re going to suspend all of those due process rights because this person is an enemy of the United States,” said Dan Boyce, a defense attorney and former U.S. attorney not connected to the Lundeby case.

(…)

Boyce said the Patriot Act was written with good intentions, but he said he believes it has gone too far in some cases. Lundeby’s might be one of them, he said.

“It very well could be a case of overreaction, where an agent leaped to certain conclusions or has made certain assumptions about this individual and about how serious the threat really is,” Boyce said.

Gee, do you think ?

Here’s a report from a local television station in North Carolina about the incident:

Rick Sincere, whose post early this morning pointed me to this horrendous story, sums up all of this up quite nicely:

In addition to incompetences like this, government law enforcement agencies are extremely shy about apologizing for mistakes. (They almost never do so, unless by court order.) So Ashton Lundeby, no matter how strong the case for his innocence is, will likely be kept in jail for years as the government tries out new and more ridiculous charges against him, until they find one that sticks or they wear Ashton down so thoroughly that he confesses to crimes he did not commit (and probably did not occur).

Welcome to the new America, my friends.

C/P: Below The Beltway

And the Republican Party still can’t figure out why they keep losing elections…

hankFor some time, the national libertarian community has been paying attention to the Free the Hops movement in Alabama.  A brief overview provides:

Of the Top 100 beers of the World at BeerAdvocate.com, a renowned beer review site, 98 cannot be sold in this state. Why is our choice so limited?

Currently, Alabama is one of only three states in the country that limits alcohol by volume (ABV) for beer to only 6%, and the only state that limits beer containers to a size of no more than 1 pint (16 ounces).

Free The Hops drafted the Gourmet Beer Bill to modify existing laws to allow more specialty and gourmet beers in Alabama. Specifically, the Gourmet Beer Bill would raise the limit on ABV in beer to just below that of wine. Free The Hops presented the Gourmet Beer Bill to the Alabama Legislature in 2006 and 2007 and has presented it again for 2008.

Right now, the bill is being held up by one authoritarian imbecile in the State Senate.  Here’s the scoop:

Republican State Senator Hank Erwin has been an outspoken opponent of this bill.  Instead of letting it go to a vote, he places his moral code above the legislative process. Erwin has been filibustering the bill and plans to continue until this legislative season ends.

Erwin’s strange views on morality have already placed him in the national spotlight.

“New Orleans and the Mississippi Gulf Coast have always been known for gambling, sin and wickedness,” wrote Erwin about why Hurricane Katrina hit. “It is the kind of behavior that ultimately brings the judgment of God.”

According to stories I’m hearing today, Senator Morality doesn’t mind breaking his word when it gives him political leverage.  Two reliable sources close to the Free the Hops effort have relayed pretty much the same story to me.  According to them, a Free the Hops lobbyist approached Erwin about not filibustering the bill.  Erwin had a gun rights bill he was pushing and a deal was cut: Erwin wouldn’t filibuster the gourmet beer bill if the lobbyist would support the gun bill.

As I hear it, the lobbyist did push hard for the gun bill, but it failed anyway.  Now Erwin isn’t holding up to his end of the bargain.

Not that I’m suggesting that anyone give Senator Erwin a call at his home number of (205) 620-0116 or pop him an e-mail at senatorerwin@aol.com, but I just did.  While I’m still riled up over the issue, I do feel a bit calmer after completing the call.

Erwin is such a joke that I reserved a special place for him in my recent lineup of dumbass Alabama politicians.   However, the joke could be on Alabama, as Erwin has recently announced his intention to run for Lt. Governor in 2010.  I don’t think he’ll win, as I know too many Republicans who’d cross party lines to vote against him.  This video clearly indicates how loved he is even in his home district.

Photo courtesy of The Birmingham Free Press

Is It Time For A Federalism Amendment ?

Law Professor Randy Barnett thinks so:

In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”

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

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

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

In essence, Barnett argues that states can use the threat of a Constitutional Convention to force Congress to propose an Amendment to the states for ratification. This method worked to some effect in the early part of the 20th Century when Congress finally acted on what became the 17th Amendment after thirty-one states had passed resolutions calling for a Constitutional Convention to consider such an Amendment. Barnett contends that it could work again.

While the specific text of Barnett’s proposed Amendments, which you can find in the article linked above, is interesting and worthy of further discussion, I think there are several problems with his proposal.

First, his suggestion that the states play a game of Constitutional “chicken” with Congress by issuing a call for a Constitutional Convention raises all of the objections to that route that Brad and I noted nearly three years ago. Namely, this:

America was fortunate in 1787 in that we had men like Madison, and Hamilton, and Washington, and Franklin who produced a document that, to this day stands as the blueprint for the best system of government yet devised. I shudder to think what would happen if a Convention were called and populated by the likes of Schumer, Pelosi, Frist, Reid, Specter, and Kennedy.

And that’s precisely what could happen under Barnett’s proposal. What if, instead of caving in to the states on a Federalism Amendment, Congress decides to call their bluff and let a Convention go forward ? Does anyone really think that the end result of such a convention would come even close to what Barnett is suggesting ? I don’t, and I don’t want to take that risk.

The other problem with Barnett’s proposal is pointed out by his Volokh Conspiracy co-blogger Ilya Somin:

I am far less optimistic than he is about the likelihood that state governments will support such a massive reduction in federal power. Randy writes that “States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.” In reality, however, many state governments have a great deal to lose because they receive massive quantities of federal subsidies (equivalent to some 20-30% of their total budgets; see Table B-86 here) that would mostly be cut off by Section 3 of Randy’s proposed amendment. The states got some $450 billion in federal funding in 2008, and are likely to get even more this year. Right now, most states are very happy to take federal stimulus money, and many would like to get even more. State governments also often support federal regulation of private activity. John McGinnis and I discuss the reasons why state governments often favor broad federal authority in greater detail in this article. If the states really did have “nothing to lose” from imposing tight constraints on federal power, they probably would not have allowed the latter to grow to its current bloated size in the first place.

You need to look no further for evidence in support of Somin’s argument than the news coverage of Governors, Mayors, and other local officials who paraded to Washington in the weeks after Obama’s Inauguration to ensure that they got their piece of the stimulus pie. For the most part, these local and state leaders want federal money because, without it, their citizens would have to bear to full cost of all those state programs they’ve implemented — and that would lead to fiscal, and political, disaster for the powers that be.

As Somin notes, Barnett may have a point that a Federalism Amendment may have the salutary effect of giving the tea party movement something to rally around that is more productive than just “hate Obama” and “vote for Republicans,” but as a practical suggestion it seems to be sorely lacking.

Supreme Court One Step Closer To Allowing Strip Searches In Schools

I’ve written in the past about the case of Savanna Redding, a now 19 year-old woman who, when she was thirteen years old was strip-searched by officials at her Arizona school who were convinced that she was concealing a banned substance; Advil.

As it turned out, Savanna had no drugs on her, but the strip search is something she’ll never forget, and, yesterday, her case against the school officials who did this to her was argued before the Supreme Court of the United States:

An important case at the Supreme Court sometimes informs as much about the justices as the issue at hand, and yesterday’s animated hearing on whether school officials have the right to strip-search a 13-year-old female student seemed just such a case.

Justice Stephen G. Breyer wondered if the incident was much different from the experience of disrobing for gym class. Justice Anthony M. Kennedy affirmed his deep concerns about illicit drugs. Justice Ruth Bader Ginsburg seemed at times on the edge of exasperation with her all-male colleagues. And Chief Justice John G. Roberts Jr. searched for a way to make the issue go away.

But it was Justice David H. Souter who seemed to sum up the dilemma for a majority of the court. He put himself in the place of a school official balancing the need for keeping his young charges safe from drugs while respecting the constitutional protections even middle school students should receive.

“My thought process is, I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry,” Souter said.

As ScotusBlog’s Lyle Dennison notes, the Justice’s questioning seemed to indicate that their decision in this case will be motivated by fear more than anything else:

With an undercurrent of fear running across the Supreme Court bench about drug abuse among school students, and a perception that young people will try hard to avoid detection, the Justices searched anxiously on Tuesday for a way to clarify — and perhaps to enhance — public school principals’ authority to conduct personal searches of the youths in their charge.

(…)

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?” Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

Along with Souter, two other Justices whose votes might turn out to be crucial — Stephen G. Breyer and Anthony M. Kennedy — were plainly more concerned about the drug problem than with student privacy. Both of those Justices, in past cases involving students and suspected drug use, have suggested that students’ rights were not very sturdy.

You can read the full transcript of yesterday’s oral argument in the case here.

Given this, I find myself in agreement with Radley Balko, who says that the reports from yesterday’s oral argument are not encouraging at all for anyone who believes in civil liberties:

Can anyone think of a single incident in the last 30 years in which several children have died after ingesting drugs distributed by one of their classmates on school grounds? Before we let school principles go rummaging through the panties of underage girls, shouldn’t we be at least be able to cite a few examples?

It’s a little troubling to see how comfortable these old men (Ginsburg isn’t quoted in the article) seem to be with allowing school administrators access to the genitalia of school children based on nothing more than a hunch that they might be “crotching” some ibuprofen.

And Steve Verdon notes that the school officials could have exercised just a small degree of common sense:

The strip search was based on a snitch’s statements, something that should be taken with a shovel of salt. When you are down to the underwear and you haven’t found drugs on a student with no history of drug abuse, good grades, good attendance, and no other indicators of being a problem student maybe it is at that point that you should call the child’s parents and involve them.

I summed my own opinions about this story up last month:

I cannot imagine any circumstances where it should be acceptable for school officials to strip search a child. If there is some suspicion that a crime was committed, then the matter should be turned over the police — in which case she couldn’t have been strip-searched until she was actually placed under arrest.

It is, however, John Cole who comes away with the quote of the day on this story:

I can state that as someone with an IQ over room temperature, the fact that we are debating whether it is appropriate for school authorities to strip search kids is a sure sign that something has gone horribly, horribly wrong with this country and our sense of perspective, and I blame the war on drugs.

The fact that Supreme Court Justices, and likely a large segment of the American public, can’t recognize that makes it all even more troubling.

C/P: Below The Beltway

The Constitution really DOES mean what is says

This morning, the 9th circuit court of appeals confirmed that the 2nd amendment is indeed incorporated against the states under the selective incorporation doctrine, in the case Nordyke Vs. King.

This means that the 2nd amendment has a lawful status equivalent to that of the first, fourth, fifth, and other amendments which explicitly protect our fundamental rights.

Of course, that is only lawfully binding within the 9th circuit; but it is expected that other circuits will take judicial notice of the 9ths ruling.

If you aren’t familiar with the Nordyke Vs. King; this is the case where a gunshow operator was denied access to use country fairgrounds for their gunshows, because a county ordnance prevented the possession of firearms on county property by anyone other than law enforcement.

The facts of the case as presented to the court are as follows (emphasis in bold and red are mine):

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, they have publicized numerous shows across the state, including at the public fairgrounds in Alameda County.

Before the County passed the law at issue in this appeal, the Alameda gun shows
routinely drew about 4,000 people. The parties agree that nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors, a legislative body, passed Ordinance No. 0-2000-22 (“the Ordinance”), codified at Alameda County General Ordinance Code (“Alameda Code”) section 9.12.120.

The Ordinance makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code § 9.12.120(b).

It does not mention gun shows.

According to the County, the Board passed the Ordinance in response to a shooting that occurred the previous summer at the fairgrounds during the annual County Fair.

The Ordinance begins with findings that “gunshot fatalities are of epidemic
proportions in Alameda County.”

At a press conference, the author of the Ordinance, Supervisor Mary King, cited a “rash of gun-related violence” in the same year as the fairground shooting. She was referring to a series of school shootings that attracted national attention in the late
1990s, the most notorious of which occurred at Columbine High School in Littleton, Colorado.

But the Nordykes insist that something more sinister was afoot. They point to some of King’s other statements as evidence that she actually intended to drive the gun shows out of Alameda County.

Shortly before proposing the Ordinance, King sent a memorandum to the County Counsel asking him to research “the most appropriate way” she might “prohibit the gun shows” on County property.

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as
icons of patriotism.”

Without expressing any opinion about King’s remarks, the Board of Supervisors adopted the Ordinance. County officials then exchanged several letters with the
Nordykes.

The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance.

As the County Counsel had told the General Manager, the Ordinance did not
expressly prohibit gun shows or the sale of firearms.

An aside from the the blog author: This is in fact a false statement. California statute in conjunction with federal law (i.e. the sum total of requirements imposed by both sets of statutes combined; not each set individually), requires that firearms transfers occur face to face, through an FFL; that the FFL conduct a background check and in person identity verification of the person they are delivering the weapon to at the time of sale, AND at the time of delivery if those times are separate; and that the sale be conducted at the FFLs place of business, an organized gun show, or a licensed auction.

Effectively, the only way they could conduct a gun show, would be to have pictures of guns available, at which time prospective gun purchasers could arrange to meet the FFL later at their place of business to purchase a firearm. It would not even be lawful to explicitly arrange for a sale at the show and then complete the transaction later.

The county counsel knew, or should have known, that this was the case.

The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

During the same period, representatives of the Scottish Caledonian Games (“the Scottish Games”) inquired about the effect of the new law on the activities they traditionally held on the fairgrounds. Those activities include reenactments, using period firearms loaded with blank ammunition, of historic battles.

After the inquiries, the County amended the Ordinance to add several exceptions. Importantly, the Ordinance no longer applies to [t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

This exception allows members of the Scottish Games to reenact historic battles if they secure their weapons, but it is unclear whether the County
created the exception just for them.

By the time the County had written this exception into the Ordinance, the Nordykes and several patrons of and exhibitors at the gun shows (collectively, “the Nordykes”) had already sued the County and its Supervisors under 42 U.S.C. § 1983 for various constitutional violations. The amendment did not mollify them, and their lawsuit has wended through various procedural twists and turns for nearly a decade.

I just want to highlight again one particular passage:

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism.”

Disgusting.

Unfortunately the result here is mixed. The circuit has ruled that the 2nd is incorporated against the states; but that it did not overturn the statute in question… I’m not really sure I agree with or follow their reasoning on this one.

The ruling provides that the second amendment is explicitly incorporated against the states, in plain language:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”

Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right.

It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.

The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

There could not be a better, and more unambiguous, declaration of right than this.

What is puzzling to me is how they decided that the county ordnance did not then violate the second amendment.

Yes, they make clear that laws which make exercising fundamental rights more difficult do not automatically infringe upon them (from a legal standpoint); but it seems to me this is a clear cut case of a local government, promulgating a complete ban on the possession of firearms on land controlled by that local government.

Such a ban should be clearly unconstitutional under this analysis.

It would be like saying free speech did not apply on county property, which IS clearly prohibited. Yes, there can be reasonable restrictions, but total prohibition should be right out.

Given the relative weakness of argument supporting the ordnance, and complete lack of precedential support, I can only conclude they were desperately hunting for a reason not to invalidate ALL gun control legislation in one stroke.

Now, the real question, is whether either party is going to continue appealing, and file a petition for certiorari before the supreme court.

Both parties have grounds, and standing to file; and both parties have both incentive and disincentive to do so.

If they do, and the court decides to take it, it would be the second most significant second amendment case ever, after Heller (Heller clearly supersedes Miller, and is therefore more significant)

By the by, if you read the whole ruling (and I recommend you do) there is some extensive discussion of Cruikshank, Presser, and Slaughterhouse. I believe that Heller provided an explicit foundation for all three to be overturned (at least partially).

Actually I believe that proper jurisprudence suggests they should be overturned as having had no facial validity in their initial rulings, being clearly against the principals engendered in the constitution; but Heller gives a precedential foundation for this).

Although I’m generally not a big fan of Hugo Black; I think he had the right concept on the 14th amendment. In fact, I believe it should have been clear without the fourteenth amendment, and merely through the supremacy clause that ALL elements of the constitution as directly related to the people and the protection of our rights (as opposed to the structural components of the constitution) applied to the states.

Also contained therein, is an analysis of the right to keep and bear arms as a fundamental individual right, and commonlaw right from before the founding of this nation through the passage of the 14th amendment and beyond; including a discussion of the racist nature of gun control.

The footnotes and citations too contain a wealth of information, this lovely nugget being my favorite:

we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

In all, the incorporation portion of the ruling and opinion are so well researched, and reasoned, in such depth; that I cannot see how a credible argument could successfully be made against it, given an honest arbiter.

Conversely, the section (only a few paragraphs of a 40 page ruling) arguing that the ordinance did not violate the second amendment was so poorly argued that I can’t see how a successful argument COULD NOT be made against it, given an honest arbiter.

So I say, Alameda County, PLEASE appeal this to the supreme court on incorporation grounds; and to the Nordykes, please appeal the decision to uphold the law.

Thanks ever so much.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Gov. Rick Perry’s Tenth Amendment Stance: Principle or Political Pandering?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. – Amendment X – Powers of the States and People. Ratified 12/15/1791.

Texas Governor Rick Perry (R) in his support of HCR 50, a resolution reaffirming Texas’ Tenth Amendment rights has reinvigorated not only the debate over state’s rights but also the ultimate “nuclear” option of a state’s right to secede from the U.S.

On April 9th, Gov. Perry explained his reasoning behind supporting the resolution.

    Gov. Rick Perry’s Tenth Amendment Stance: Principle?

Gov. Perry, speaking at a Tea Party event on April 15th went a step further telling the crowd that the day could come where Texas could decide to secede.

“We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.”

Christy Hoppe, writing for The Dallas Morning News, calls the notion that Texas has a right to secede a “mythology.”

“The fact is, the treaty under which Texas joined the U.S. provides that it could be divided into five separate states. But it is not empowered to leave the union, a question that the Civil War seems to have settled once and for all.”

Left leaning blogs such as Texas Liberal also agree that the question of secession was “settled” with the Civil War and goes even further stating that Gov. Perry’s statements are “treasonous.”

On further inspection, the idea that individuals on the Left would call the question of secession settled should not be surprising at all. When taken to its ultimate conclusion, the philosophy of the Left is “might makes right.” If a majority of people can be convinced they have the right to pick the pockets of a minority of taxpayers, for example, then by all means. In their collectivist world view, “the majority rules;” individual rights must always take a back seat to the will of the majority.

The question of secession was by no means “settled” by the Civil War (or the War Between the States if you prefer), at least not in a sense which recognized the rule of law. Abraham Lincoln made a choice between upholding the U.S. Constitution and preserving the Union. With his suspension of the writ of habeas corpus, and other civil liberties we normally take for granted, Lincoln chose the latter*. The state’s rights issue was “settled” from the barrel of a gun in a period of U.S. history we now call “Reconstruction.”

Beyond this “settled history” argument, it seems to me that if the federal government violates the Tenth Amendment and ignores the sovereignty of the states, it stands to reason that the states can ignore the dictates of the federal government (which is really all Gov. Perry is trying to do). The Tenth Amendment was a guarantee to those who were concerned about states losing sovereignty to a stronger federal government. After all, it wasn’t that long ago that they had secured their independence form Great Britain, why would they want to surrender sovereignty to a new authority?

Over time, the Tenth Amendment was ignored by the courts and the congress. The aftermath of the Civil War practically changed the term “The United States” from an “are” to an “is.” And with the passage of the Seventeenth Amendment in 1913, the states lost the ability to be represented at the federal level. For all practical purposes, the “United States of America” could be more accurately referred to as “The United State of America.”

These facts of history do not make the notion of either state’s rights or secession “mythology” by any means. The Declaration of Independence makes the case for “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another…” Thomas Paine’s “Common Sense” makes a similar case as does John Locke in his “Two Treatises of Government.” There is no shortage of political theory which supports Gov. Perry’s claim that states (and people for that matter) have the right to seek self determination and dissolve or separate themselves from oppressive government.

    Gov. Rick Perry’s Tenth Amendment Stance: Political Pandering?

Gov. Perry’s sudden concern for state’s rights does have me wondering about his motives. As I’ve pointed out above, this erosion of Tenth Amendment rights has been happening since before the text of the amendment’s ink dried. The federal government did not just start undermining state sovereignty when Barack Obama was sworn into office on January 20, 2009.

I can’t help but wonder how concerned Gov. Perry was when his predecessor, George W. Bush, moved from the Texas Governor’s Mansion and into the White House imposing unfunded federal mandates such as No Child Left Behind? On what side of the state’s rights debate did Gov. Perry fall when the Ashcroft/Gonzales Justice Department argued successfully before the Supreme Court that Angel Raich could not use marijuana for her medical conditions pursuant to California law on the theory of interstate commerce**?

Some of Perry’s critics believe that his sudden Tenth Amendment convictions have more to do with political pandering than principle (and they may have a point). Gov. Perry is looking to face Sen. Kay Bailey Hutchison in the 2010 Republican Primary Governor’s race. What better way to win support than to promote state’s rights at a Tea Party event? Who knows, perhaps with all of the state’s rights and small government rhetoric he’s espousing, small government minded Texans will forget about his executive orders forcing 11 year-old girls to receive HPV vaccinations?

While it is great to hear someone of Gov. Perry’s stature stating that there are limits to federal power, it would be a lot easier for me to accept as genuine if it wasn’t his party that was out of power in Washington.

» Read more

DHS Responds To Uproar Over Report On “Right Wing Extremism”

In light of the uproar that we’ve seen over the report that Stephen Gordon brought into the public light earlier this week, the Department of Homeland Security has issued this press release:

Release Date: April 15, 2009

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

The primary mission of this department is to prevent terrorist attacks on our nation. The document on right-wing extremism sent last week by this department’s Office of Intelligence and Analysis is one in an ongoing series of assessments to provide situational awareness to state, local and tribal law enforcement agencies on the phenomenon and trends of violent radicalization in the United States. I was briefed on the general topic, which is one that struck a nerve as someone personally involved in the Timothy McVeigh prosecution.

Let me be very clear: we monitor the risks of violent extremism taking root here in the United States. We don’t have the luxury of focusing our efforts on one group; we must protect the country from terrorism whether foreign or homegrown, and regardless of the ideology that motivates its violence.

We are on the lookout for criminal and terrorist activity but we do not – nor will we ever – monitor ideology or political beliefs. We take seriously our responsibility to protect the civil rights and liberties of the American people, including subjecting our activities to rigorous oversight from numerous internal and external sources.

I am aware of the letter from American Legion National Commander Rehbein, and my staff has already contacted him to set up a meeting next week once I return from travel. I will tell him face-to-face that we honor veterans at DHS and employ thousands across the department, up to and including the Deputy Secretary.

As the department responsible for protecting the homeland, DHS will continue to work with its state and local partners to prevent and protect against the potential threat to the United States associated with any rise in violent extremist activity.

I’ll leave it to others to comment more fully, but I will say that it’s worth remembering that Timothy McVeigh got his start with the so-called militia movement, and he ended up killing hundreds of people.

H/T: Little Green Footballs

$1.00

This is the amount a jury awarded the America hating professor, Ward Churchill in his civil rights lawsuit against The University of Colorado. Despite charges of academic misconduct “deliberate and repeated plagiarism, falsification, and fabrication” Churchill and his legal team turned his dismissal from CU into a First Amendment free speech issue.

Maybe I don’t quite understand how tenure is supposed to work, but this idea that someone is entitled to a job regardless of how his or her actions damage the reputation of his or her employer (CU in this case) is asinine. Ward Churchill’s firing is not a First Amendment issue but a freedom of association issue (in this case, CU decided to discontinue its association with the professor).

The First Amendment protects speech from government reprisals. I suppose one could argue that Churchill’s employer was the State of Colorado (a wonderful example for why all higher learning institutions should be privately owned, operated, and funded) and therefore, was a government reprisal.

Local Denver attorneys and talk show hosts Dan Caplis and Craig Silverman point out that Churchill took an oath pursuant to Colorado State law to uphold the U.S. Constitution. From their legal point-of-view, Churchill violated this oath when he encouraged students (on multiple occasions) to commit acts of violence against private and government institutions as well as private citizens. How can Churchill take an oath to a constitution he finds illegal and immoral, violate that oath, and still have legal grounds to remain employed by the State?

Beyond this, university speech codes, politically correct as they are, how is it possible to say that one professor could be legitimately fired for violating the prevailing P.C. orthodoxy while Churchill is entitled to a job despite praising the OKC bombing and the 9/11 terrorist attacks? Caplis, on his radio show, pointed out that if Churchill had said, for example, that female students on the CU campus deserved to be raped; his career would be over (and rightfully so). Few would be claiming his First Amendment rights were being violated by CU if these were his words.

Ward Churchill may not deserve to be prosecuted for his hateful speech but he doesn’t have the “right” to teach at CU either.

To Mr. Churchill I would just like to say the following:

Congratulations on your $1 civil rights victory (which you do not deserve); don’t spend it all in one place…asshole!

1 2 3 4 5 6 10