Not only is it a bad idea for the White House to take over the census, it’s illegal. The Constitution gives Congress the power to conduct the Census “in such Manner as they shall by Law direct.” The law in turn assigns the authority to the Secretary of Commerce. Beyond signing that law — years ago — the President plays no role whatsoever. Absent a new act of Congress, the White House cannot take it over. (Via Instapundit.)
If President Obama wants to take over the Census, he is going to have to do it in broad daylight, by a highly controversial act of Congress. I don’t know that that will stop him, but everyone will know what he’s doing.
A lawsuit by Judicial Watch challenges the constitutionality of the “Saxbe fix,” which allows Hillary Clinton to assume the office of Secretary of State despite the Constitution’s Emoluments clause.
I’m inclined to think the Saxbe fix is constitutional, but it will be interesting to see it tested in court.
It keeps getting worse. A provision in the stimulus package would prohibit any worship in any college or university building that is modernized, renovated, or repaired by stimulus funding. The provision is sufficiently vague that it seems even to prohibit prayer.
The Senate voted today along party lines not to remove the provision. That job will be left for the courts.
A federal judge has ordered a Jewish defendant released on bail, rejecting the argument that Jews are inherent flight risks because they can settle in Israel. Sounds like a no brainer? You might think so, but the ruling overturns an earlier order that has held the man without bond for over two months.
Glenn Reynolds comments on the Supreme Court’s recent Herring decision:
According to Chief Justice John Roberts, writing for the majority, “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.”
You can see their reasoning. Herring’s a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?
Except that the rest of us enjoy no such immunity. If you’re a citizen who, say, accidentally carries a gun into a designated “gun-free” zone, the Supreme Court will not say that you can escape punishment because your action was “the result of isolated negligence.” For citizens, there’s no “I forgot” defense.
I think Reynolds is mistaken here. I’d been meaning to explain why, but before I could, Ramesh Ponnuru expressed my thoughts perfectly:
What I think this analysis misses is that letting criminals go free in these cases punishes the public, not just the police. The Supreme Court has made the judgment—a properly legislative judgment, one would think—that this cost is worth paying in order to deter police misconduct. But when that misconduct is unintentional that weighing of the balance becomes hard to sustain, and a good-faith exception to the rule makes sense.
Here’s an interesting question: if we were devising the system from scratch, could we deter police misconduct effectively without an exclusionary rule at all? If we could, that would certainly be better for society.
UPDATE: An interesting tale about the origin of the exclusionary rule.
Well, this is the classic argument against the exclusionary rule, and it’s a pretty good one. The other classic argument against the exclusionary rule is that if you’re actually innocent — if the police search you unreasonably and don’t find anything — the rule does you no good because you’ve got nothing to exclude anyway.
But he goes on to point out that official immunity is another modern invention, and when officers cannot be prosecuted for their misconduct, they are incentivized to violate our rights, unless they cannot gain anything from doing so. Fair enough, but then we should focus on limiting official immunity, rather than extending the exclusionary rule. Randy Barnett has a suggestion how to do that.
A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved, according to a person with knowledge of the opinion.
The court decision, made in December by the Foreign Intelligence Surveillance Court of Review, is expected to be disclosed as early as Thursday in an unclassified, redacted form, the person said. The review court has issued only two other rulings in its 30-year history.
The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.
From the beginning, it was asinine to suggest that the NSA needed a warrant to conduct foreign surveillance. Any ambiguity that existed arose because the law was written in a time when all our enemies were nation-states, and it did not explicitly anticipate non-state enemies, such as Al Qaeda. The ambiguity has now been eliminated, making clear that overseas surveillance need not be limited to agents of nation-states, and the revised law has been ruled constitutional:
The appeals court is expected to uphold a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August of 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications, according to the person familiar with the ruling. . .
[The FISA court] found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information, according to the person familiar with the ruling.
The ruling does not resolve whether the NSA program was legal before the law was revised, and no ruling is ever likely because (as I understand it) the Protect America Act makes the question moot. Nevertheless (as even the NYT concedes), the new ruling suggests that it was legal. If foreign surveillance of non-state actors is legal with Congressional approval, it was probably legal when Congress hadn’t spoken clearly either way.
UPDATE: Orin Kerr disagrees with my final conclusion that the decision suggests the NSA program was legal at the time. He thinks it doesn’t tell us much either way.
A U.S. civil liberties group sued the federal government Monday, charging it violated the Constitution by contracting a Roman Catholic entity to help victims of human trafficking.
The American Civil Liberties Union said the U.S. Conference of Catholic Bishops was imposing its beliefs on victims of human trafficking by not allowing federal grant money to be used for contraception or abortion.
When the bishops applied for the contracts, they said they would not work with subcontractors who provided abortion services or contraceptives, such as condoms, which conflict with Catholic teachings, according to the ACLU. . .
The suit asks the court to stop the department from allowing its grants being spent in a way that is restricted by religious beliefs.
I see two ways to read the ACLU’s position: The first is that not only is abortion constitutionally protected, but it is actually unconstitutional for an organization to withhold funding for abortions. That would be amazingly radical, but the other is even more so. The second reading is that it might be okay to withhold funding for abortion, provided you can provide a secular basis for doing so, but you cannot do so for religious reasons. In essence, if you do business with the government, you cannot permit your religion to affect ethical decisions. Alas, the most natural reading of the suit is the second.
Were the ACLU to prevail, it would create a bizarre situation wherein Catholics would be prohibited from doing the exact same thing as non-Catholics, simply because they are Catholic. How a supposed civil rights organization could support such a clear violation of freedom of religion is beyond me.
Oh, it also gives a window into the ACLU’s priorities. Stopping human trafficking is less important than keeping Catholics out of the public square.
UPDATE: Changed the post title, which may have been unduly harsh.
There’s been a steady drip of revelations about Attorney-General Nominee Eric Holder. We already know of his central involvement in the Rich pardon (and more here), his involvement in the paramilitary capture of Elian Gonzalez without a court order, and his advocation of Internet censorship. In recent days we’ve had three more revelations:
The LA Times reports that Holder overruled his Justice Department subordinates to support a pardon for Puerto Rican terrorists, and that he muzzled the Pardon Attorney when he tried to protest:
Attorney general nominee Eric H. Holder Jr. repeatedly pushed some of his subordinates at the Clinton Justice Department to drop their opposition to a controversial 1999 grant of clemency to 16 members of two violent Puerto Rican nationalist organizations, according to interviews and documents.
Details of the role played by Holder, who was deputy attorney general at the time, had not been publicly known until now. The new details are of particular interest because Republican senators have vowed to revisit Holder’s role during his confirmation hearings next week. . .
President Clinton’s decision to commute prison terms caused an uproar at the time. Holder was called before Congress to explain his role but declined to answer numerous questions from angry lawmakers demanding to know why the Justice Department had not sided with the FBI, federal prosecutors and other law enforcement officials, who were vehemently opposed to the grants. . .
Holder instructed his staff at Justice’s Office of the Pardon Attorney to effectively replace the department’s original report recommending against any commutations, which had been sent to the White House in 1996, with one that favored clemency for at least half the prisoners . . . And after Pardon Attorney Roger Adams resisted, Holder’s chief of staff instructed him to draft a neutral “options memo” instead, Adams said.
The options memo allowed Clinton to grant the commutations without appearing to go against the Justice Department’s wishes, Adams and his predecessor, Margaret Colgate Love, said in their first public comments on the case.
Second, as Deputy Attorney General, Holder issued a memorandum designed to limit legal counsel for employees of corporations under investigation. (Via Instapundit.)
And third, how could the story be complete without a connection to the Blagojevich scandal? The Chicago Sun-Times reports:
Before Eric Holder was President-elect Barack Obama’s choice to be attorney general, he was Gov. Blagojevich’s pick to sort out a mess involving Illinois’ long-dormant casino license.
Blagojevich and Holder appeared together at a March 24, 2004, news conference to announce Holder’s role as “special investigator to the Illinois Gaming Board” — a post that was to pay Holder and his Washington, D.C. law firm up to $300,000.
Holder, however, omitted that event from his 47-page response to a Senate Judiciary Committee questionnaire made public this week — an oversight he plans to correct after a Chicago Sun-Times inquiry, Obama’s transition team indicated late Tuesday. . . Holder signed the questionnaire on Sunday — five days after Blagojevich’s arrest for allegedly putting Obama’s U.S. Senate seat up for sale.
The March 2004 Chicago news conference where Holder and Blagojevich spoke was widely covered because of a controversial 4-1 Gaming Board vote earlier that month to allow a casino to be built in Rosemont. That vote defied the recommendation of the board’s staff, which had raised concerns about alleged organized-crime links to the Rosemont casino’s developer.
Holder was given a lucrative appointment, by Blagojevich, as the “special investigator to the Illinois Gaming Board” to investigate a controversial decision raising concerns about links to organized crime. Now, he says he forgot the whole thing, despite the fact that Blagojevich’s scandal had been the top story for nearly a week when he completed the Senate questionnaire. Worse, he never remembered the matter until the Sun-Times uncovered it.
The Holder nomination is tainted from nearly every direction now: political pardons, corruption, infringement of civil liberties. It will be very interesting to see what Senate Democrats do with it, or if it even makes it to the Senate.
David Kopel points out a new article by David Hardy appearing in the Northwestern Law Review that discovers an error in a 2006 article by Saul Cornell advocating a collectivist interpretation of the Second Amendment. Cornell’s article cited an 18th century legal treatise in support of the idea that the Second Amendment is about state militias. However, Cornell’s article failed to notice that the passage it cited regarded the Article 1 grant of militia powers to Congress, not to the Second Amendment. (Not too surprisingly, the section on militas in Article 1 is about militias.)
This is interesting, because Justice Stevens uncritically cited Cornell’s erroneous article in his Heller dissent (in footnote 32) to buttress his argument for a collectivist interpretation of the Second Amendment.
Pretty shoddy work by Stevens’s staff. With the responsibility for authoritative interpretation of the US Constitution, you might hope that Supreme Court justices would verify their sources. (ASIDE: Lest I be accused of the same error, let me admit that I have not read Cornell’s article, as it does not appear to be available free on the Internet. But then, I’m not on the Supreme Court.)
In a truly dangerous ruling, the Calfornia Supreme Court has ruled that California’s Good Samaritan law, intended to protect good-faith rescuers from liability, applies only to medical professionals. Any ordinary person who sees an accident in California (or a drowning child, an injured hiker, etc.) is now on notice not to get involved.
In the specific case, a woman who pulled another woman from a car was sued for injuries the latter woman incurred in the rescue. The rescuer alleged that the car was at risk of explosion, which the plaintiff contested, but the decision did not rely on any finding of fact in regard to that.
President-elect Barack Obama’s incoming chief of staff Rahm Emanuel had a deeper involvement in pressing for a U.S. Senate seat appointment than previously reported, the Sun-Times has learned. Emanuel had direct discussions about the seat with Gov. Blagojevich, who is is accused of trying to auction it to the highest bidder.
Emanuel talked with the governor in the days following the Nov. 4 election and pressed early on for the appointment of Valerie Jarrett to the post, sources with knowledge of the conversations told the Sun-Times. There was no indication from sources that Emanuel brokered a deal, however.
A source with the Obama camp strongly denied Emanuel spoke with the governor directly about the seat, saying Emanuel only spoke with Blagojevich once recently to say he was taking the chief of staff post.
But sources with knowledge of the investigation said Blagojevich told his aides about the calls with Emanuel and sometimes gave them directions afterward. Sources said that early on, Emanuel pushed for the appointment of Jarrett to the governor and his staff and asked that it be done by a certain date.
At least some of the conversations between Emanuel and Blagojevich were likely caught on tape, sources said.
Helen Jones-Kelley, who illegally used a state database to spy on “Joe the Plumber” is resigning:
An Ohio agency director resigned Wednesday in the wake of a finding that she improperly used state computers to access personal information on the man who became known as “Joe the Plumber” during the presidential campaign.
Two other officials who were suspended from their positions for their role in the computer search will not be returning to their jobs, an agency spokeswoman said.
But, Jones-Kelley wants us to know that she is the real victim here:
Department of Job and Family Services Director Helen Jones-Kelley said in a statement accompanying her resignation that she won’t allow her reputation to be disparaged and that she is concerned for her family’s safety.
Sheesh.
For more disparagement of Jones-Kelley’s reputation, see the Ohio Inspector General’s report.
This isn’t the end of the story. There’s also Doug Thompson, who helped orchestrate the attempted cover-up at the Department of Job and Family Services, plus five other Ohio agencies that illegally investigated Wurzelbacher. Then there’s the question of why Ohio Governor Ted Strickland decided to stand by all these criminals.
Jim Lindgren looks at the chronology of the Blagojevich scandal. He argues that it only makes sense if Obama’s team refused a bribe solicitation from Blagojevich. Coupled with Obama’s refusal to deny any contact between his staff and Blagojevich, it seems pretty clear what must have happened.
Lindgren speculates further that Obama’s people might have cooperated with the investigation. If so, that could justify his refusal to answer whether they had any contact with Blagojevich, and Obama will come out of this looking pretty good. On the other hand, it will look very bad if they failed to report it, and some more people will get tossed under the bus.
UPDATE: Lindgren’s hypothesis looks even better now, in light of Obama’s latest carefully phrased denial: “Our office had no involvement in any deal-making for my Senate seat. That I am absolutely certain of.” Note that he does not deny any contact, just deal-making.
I do wish he would come right out and say what he knows.
Questions are being raised about Obama’s connections with Blagojevich. David Axelrod (Obama’s campaign manager) in particular has been forced to retract a statement he made two weeks ago that directly contradicts Obama’s statement today that he never spoke with Blagojevich about his replacement in the Senate.
Signs remain, however, that the continuing investigation could still involve [Obama].
It appears that Obama friend Valerie Jarrett, an incoming senior White House adviser, is the person referred to repeatedly in court documents as “Candidate 1.” That individual is described as a female who is “an adviser to the president-elect” and as the person Obama wanted appointed to the Senate seat. Court papers say that “Candidate 1” eventually removed “herself” from consideration for the Senate seat.
In a Nov. 11 phone conversation with an aide, Blagojevich talked at length about “Candidate 1” and said he knew that Obama wanted her for the open seat but “they’re not willing to give me anything except appreciation. (Expletive) them.”
One day later, Jarrett, a Chicago businesswoman who is one of three co-chairmen of Obama’s transition team and was a high-level adviser to his presidential campaign, made it known that she was not interested in the seat.
In light of that, take a second look at Obama’s exact words:
I had no contact with the governor or his office and so we were not, I was not aware of what was happening.
and at Axelrod’s retraction:
I was mistaken when I told an interviewer last month that the President-elect has spoken directly to Governor Blagojevich about the Senate vacancy. They did not then or at any time discuss the subject.
Neither statement denies that a member of Obama’s staff might have communicated his wishes to Blagojevich. Combined with the wiretap evidence, that seems likely to be what happened. It also makes Axelrod’s error smaller and more understandable.
UPDATE: Katie Granju thinks they’re just plain lying. That’s another possibility. (Via Instapundit.)
ANOTHER UPDATE: My theory looks even more likely, in light of Obama’s refusal to say whether any subordinates had been in contact with Blagojevich. Obama said it would be inappropriate to say, given that it’s an ongoing investigation, which makes no sense unless his team might be tainted by the investigation.
By the way, there would be nothing wrong with Obama’s team having spoken with the Governor of Illinois about the appointment. Indeed, it would be expected. So, if indeed they did, why are they hiding it?
Illinois Governor Blagojevich has been arrested for trying to sell Illinois’s senate seat:
U.S. Attorney Patrick Fitzgerald on Tuesday accused Illinois Gov. Rod Blagojevich of participating in a “political corruption crime spree” that was a blatant effort to sell the state’s U.S. Senate seat in the latest “pay-to-play” scheme in Illinois politics.
Fitzgerald described the alleged behavior by Blagojevich, who was arrested Tuesday morning along with his chief of staff, John Harris, as “appalling.” He said his “cynical behavior” reached “a truly new low.”
“He has been arrested in the middle of what we can only describe as a political corruption crime spree,” Fitzgerald said in a news conference to announce the charges against the governor and his chief of staff. “This is a sad day for government. It’s a very sad day for Illinois government. Governor Blagojevich has taken us to a truly new low.” . . .
The series of allegations say that Blagojevich and Harris tried to sell President-elect Barack Obama’s vacated Senate seat to the highest bidder. Fitzgerald quoted Blagojevich recorded during court-authorized wiretaps as saying, “It’s a ‘bleeping’ valuable thing. You just don’t give it away for nothing.”
Staggering. Five of the eight elected Illinois governors since Adlai Stevenson have been indicted.
The state worker who unwittingly ran an improper child-support check on the man known as Joe the Plumber told lawmakers yesterday that a deputy director later “dictated” how she was supposed to cover it up.
Vanessa Niekamp, an administrator for the Ohio Department of Job and Family Services’ Office of Child Support and a 15-year state employee, said that when Deputy Director Doug Thompson came into her office, “He appeared very upset, his neck was bright red, and he was shaking. He closed my door.”
Thompson told her she must write an e-mail to the agency’s information-security officer, and then “dictated word for word” what she wrote, Niekamp said. He also reminded her that she could be fired at any time, she said.
“Within an hour, I took the rest of the day off — again using my vacation time — and went directly to the office of the inspector general. I told them everything I knew about what happened.”
So far, Ohio Governor Strickland has refused to fire anyone over the scandal. Will he continue to stand by that?
Columbia University is working to steal its neighbors’ land, writes Damon Root for Reason. Here’s a low-light, written by one person whose land Columbia hopes to take:
Under New York state law, in order to condemn property the state first has to undertake a “neighborhood conditions study” and declare the area in question “blighted.” Earlier this summer the state released its study, which concluded that Manhattanville is indeed “blighted.” This gives the state the legal green light to condemn my four buildings and hand them over to the university.
The study’s conclusion was unsurprising. Since the commencement of acquisitions in Manhattanville by Columbia, the school has made a solid effort to create the appearance of “blight.” Once active buildings became vacant as Columbia either refused to renew leases, pressured small businesses to vacate, or made unreasonable demands that resulted in the businesses moving elsewhere. Columbia also let their holdings decay and left code violations unaddressed. . .
There is also a conflict of interest in the condemnation process. The firm the state hired to perform the “impartial” blight study — the planning, engineering and environmental consultant Allee King Rosen & Fleming, Inc. (AKRF) — had been retained by Columbia two years earlier to advocate for governmental approval of the university’s expansion, including the possible use of eminent domain.
When I go to court in a few months to contest the condemnation, I will face an overwhelmingly unfair process particular to New York, and to eminent domain trials. I will not be permitted to question any of the state or Columbia’s representatives, nor will I be allowed to have anyone take the witness stand on my behalf. My attorney will only be provided with 15 minutes to speak to the court on a matter that Columbia and the state have been working on for over four years.
The jury has reached a mixed verdict in the Lori Drew “cyber-bullying” case. Drew was acquitted of any felonies, but convicted of misdemeanor charges. The bottom line is that violating the terms of service agreement of a website (which virtually no one even reads) is now a federal crime.
I find this case very troubling. Drew is scum, to be sure, but if she didn’t commit a crime, that should be the end of it from a legal perspective. In this case, there was no Missouri law under which to prosecute Drew, so federal prosecutors took over on the grounds that MySpace is headquartered in another state. They then concocted a novel legal theory under which to prosecute her and were able to obtain a conviction.
Beware. If the government wants to send you to jail, they can find a legal pretext to do it, and the victims of the government’s persecution aren’t always as deserving as Lori Drew.
UPDATE: If you’re ever being prosecuted, you’re much better off being charged with committing a particular criminal act, like murder. Then you can convince a jury you didn’t do that particular act and get off. (Even if you’re guilty!) You’re in trouble when the facts are largely not in dispute, and the issue is the legal theory to support an obscure charge.
A jury convicted five former officials at the Holy Land Foundation for Relief and Development (HLF) on all counts in the Hamas-support case after 8 days of deliberations. . .
Prosecutors say HLF was part of a Palestine Committee – a conglomerate of U.S. based Muslim organizations and individuals committed to helping Hamas financially and politically. HLF was its fundraising arm, a designation formalized by Hamas deputy political director Mousa Abu Marzook in 1994. Support for Hamas became illegal with a 1995 executive order by President Bill Clinton and subsequent congressional action.
Defense attorneys say the men were simply providing desperately needed charity to Palestinians living under Israeli occupation. HLF routed millions of dollars through a series of Palestinian charities known as zakat committees. While Hamas was designated as a terrorist organization by the U.S. Treasury, those zakat committees never were. That, defense attorneys argued, meant donations to them did not violate the law.
But the evidence proved that HLF knew where the money was going.
I was very amused to learn that, as matters currently stand, Hillary Clinton cannot constitutionally be appointed Secretary of State. The obstacle is the Emoluments clause:
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.
The compensation of the Secretary of State has been increased during Clinton’s Senate term, so she is ineligible for the office. More interestingly, there is a dispute about whether the obstacle can be removed by cutting the Secretary’s salary. (This is called the “Saxbe fix.”) A precedent dating to the Taft administration says it can, but some legal opinion disagrees and the question seems never to have been tested in court. Eugene Volokh explains.
My prediction is that Congress will institute the Saxbe fix and the Senate will confirm Clinton. Probably that will be the end of it, since it will be very difficult for opponents of the Clinton appointment (if there are any) to find someone with standing to challenge it in court.
I was very interested to read, however, that the Reagan administration believed the Saxbe fix was unconstitutional. Consequently, Reagan passed up his first choice for a Supreme Court appointment and instead picked Robert Bork. Reagan’s first choice was Orrin Hatch. Imagine how history would have been different with no Bork confirmation battle, and with Hatch on the court in place of Anthony Kennedy.
Eric Holder’s role in the Rich pardon is looking worse and worse. The author of a history of presidential pardons writes that Holder was in the thick of it:
On Nov. 18, 2000, Mr. Quinn [Marc Rich’s lawyer] told Mr. Holder that Mr. Rich was going to go for a pardon, a step his team had been contemplating for months. After the conversation, Mr. Quinn told colleagues that Mr. Holder had advised him to “go straight to” the White House and that the “timing is good.” On Dec. 11, just over a month before Mr. Clinton was to leave office, Mr. Quinn delivered the pardon papers to the White House. “The greatest danger lies with the lawyers,” Mr. Quinn wrote in an e-mail message to an aide to Mr. Rich, referring to the prosecutors in New York. “I have worked them hard and I am hopeful that E. Holder will be helpful to us.”
Under the rules governing pardon petitions — rules that were approved by Mr. Holder’s office — the views of United States attorneys “are given considerable weight” because of the “valuable insights” they have. And yet Mr. Holder did not consult Ms. White and her colleagues about the Rich pardon petition; they did not know of it until it had been granted.
Then, on Jan. 19, 2001, Mr. Holder delivered his pardon assessment to the White House, telling Beth Nolan, the White House counsel, that he was “neutral leaning favorable” on the Rich pardon. His decision, he added, was influenced by the support of Ehud Barak, the Israeli prime minister.
The people in the United States attorney’s office in New York weren’t the only ones surprised by Mr. Holder’s decision. Deborah Smolover, his top deputy for pardon cases, did not find out about the pardon for Mr. Rich until the White House called to inform her of it after midnight on Jan. 20. (Mr. Green [Rich’s business partner] won a pardon, too.) After the pardon was signed, Mr. Quinn has testified, Mr. Holder called him to commend him on “a very good job.” Mr. Holder also asked Mr. Quinn to consider hiring two former aides, one of whom had already contacted Mr. Quinn on Jan. 2 “at Holder’s suggestion.”
At the very best, Holder was guilty of dereliction of duty, failing to carry out basic due diligence. But given his evidently close connections to Rich’s attorney, it looks even worse than that.
David Kopel points out another skeleton in Eric Holder’s closet: he has a very poor record on gun rights and played a role in the INS’s paramilitary capture of Elian Gonzalez.
Earlier this year (no ancient history here), Holder joined an amicus brief in the Heller case, supporting DC’s total ban on handgun ownership and armed self-defense. Not only did the brief support the now-discredited collective view of the Second Amendment, but it also falsely argued that the collective view had been the consistent position of the Department of Justice for decades.
After the public-defenselessness side lost the historic case, he lamented the result, saying it “opens the door to more people having more access to guns.” That, of course, was the point.
Holder also played a role in the 2000 paramilitary raid on a Miami home to place Elian Gonzalez into custody and send him back to Cuba. Setting aside the question of whether it was right to send Gonzalez back (I’m prepared to concede that the law may have required it, but see the postscript), there was no excuse to stage a paramilitary raid on a peaceful, law-abiding home. Furthermore, the raid was carried out without even the authority of a court order! In fact, the court had refused to issue one.
Janet Reno’s justification for the paramilitary raid, Kopel relates, was that the family might own guns. Amazingly, the possibility that one might exercise one’s constitutional rights are justification for federal agents to knock down your door and storm your house with automatic weapons, without the cover of a court order.
Not only was Holder the deputy AG when this travesty took place, but he defended it in an interview thereafter. In that interview, Holder argued that they did not need a court order to carry out the raid, and was unable to explain why they had sought a court order if they did not need one. He also said that Gonzalez was not taken at gunpoint, and the federal agents acted “very sensitively”. A Cato Institute article relates their “sensitive” behavior:
At 5:14 a.m. — while attorneys for the young Cuban refugee negotiated his status with Justice Department officials — eight Immigration and Naturalization Service officers used a battering ram to knock down the front door of Elian’s great uncle, Lazaro. Wielding machine guns, the body-armor-clad agents knocked over a picture of Jesus Christ and a statue of the Virgin Mary on Easter Eve. They then kicked down another door inside the Gonzalez home.
According to Elian’s cousin, Marisleysis Gonzalez, federal agents held her at gun point while one screamed, “Give me the f – – – ing boy or we’ll shoot you.” An NBC cameraman said federal gunmen kicked him in the stomach, hit his sound man with a rifle butt and yelled, “Don’t move or we’ll shoot.”
Of course, as for whether Elian was taken at gunpoint, we need not take Ms. Gonzalez’s for it, there’s Alan Diaz’s Pulitzer Prize winning photo:
POSTSCRIPT: I wrote that I’m prepared to concede that the law may have required that Gonzalez be sent back to Cuba, but it is far from obvious. According to Andrew Napolitano (a legal analyst and former judge), the INS’s action was in direct violation of an order from the 11th Circuit Court of Appeals, ruling that Elian Gonzalez’s guardian could not be changed until it had heard his application for asylum. If so, the raid was not only dangerous and unjustified, but illegal as well.
Ohio’s Inspector General has concluded that there was no legitimate reason for the investigation of Joe the Plumber:
Ohio Gov. Ted Strickland is standing by an agency director who OK’d improper computer checks for confidential information on “Joe the Plumber” and used state e-mails for political fundraising.
Strickland announced today that Helen Jones-Kelley, director of the Department of Job and Family Services, will be placed on unpaid leave for one month in response to an inspector general’s investigation.
The investigation found Jones-Kelley had no legitimate reasons to check on Toledo-area resident Samuel Joseph Wurzelbacher, who was popularized as “Joe the Plumber” by Republican presidential candidate John McCain. It also confirmed she improperly used her state e-mail account to raise campaign money for President-elect Barack Obama.
Some Republican leaders, who cited the report’s findings to call on Democrat Strickland to fire Jones-Kelley, were stunned that she will remain on the job.
The Inspector General’s conclusion isn’t at all surprising, given everything we already know. I am honestly shocked, however, that Gov. Strickland is standing by Jones-Kelley. He could have avoided being swept up in this scandal, but he’s a part of it now. He is now the Governor that condones using sensitive state databases for political opposition research. He is also the Governor that condones using state resources for political fundraising. Why would he do that?
Reason has an interesting article on how the Heller decision came to pass. Particularly fascinating is how Heller had to fight the NRA as well as the District of Columbia, and how Heller avoided having the case thrown out for lack of standing.
Ohio Inspector General Tom Charles said his office is now looking at a half-dozen agencies that accessed state records on Samuel Joseph Wurzelbacher.
The Beacon Journal has learned that, in addition to the Department of Job and Family Services, two other state offices — the Ohio Department of Taxation and Ohio Attorney General Nancy Rogers — conducted database searches of Joe the Plumber. . .
In the third debate between Obama and Republican John McCain on Oct. 15, the candidates referred to Joe the Plumber more than 20 times.The next day, the taxation department conducted two separate searches of a database of liens for unpaid taxes that were certified to the Ohio Attorney General’s Office for collection.
The search was done for the express purpose of releasing the information to the media:
The department’s first search of the day was unsuccessful because of incorrect information about the individual, Kohlstrand said. Ohio Attorney General Nancy Rogers’ office then contacted taxation because it was having difficulty accessing the database, Kohlstrand said. After the two agencies talked, taxation completed a successful search.
Kohlstrand said that the AG’s office wanted access to the records so they could turn over to the national media lien information that was a public record in Lucas County. He said the national media did not have reporters in Toledo, so the attorney general’s office was helping them out with public records.
On the day following the two searches, the taxation department conducted a search of another in-house database that tracks cases and correspondence between taxpayers and the department before the liens being certified and turned over to the attorney general for collection. . . [Rick] Anthony said the database searches on both days were conducted to ensure that the information in Lucas County was being properly reported by the media.
That’s a new one. They had to investigate him, you see, to ensure that the media reports were accurate. And to save them the trouble of going to Toledo.
POSTSCRIPT: Nancy Rogers, incidentally, was appointed by Democratic Governor Ted Strickland.
POST-POSTSCRIPT: The Beacon Journal says six, but I’m only aware of five: the Attorney General, the Department of Taxation, the Department of Job and Family Services, the Bureau of Motor Vehicles, and the Toledo Police. What’s the sixth?
President Obama’s treatment of Patrick Fitzgerald will be a good first test of his integrity. The Chicago Tribune (which endorsed Obama) editorializes:
Since his arrival from New York in 2001, U.S. Atty. Patrick Fitzgerald has demonstrated the energy and integrity that, in time, could liberate Illinoisans from indentured servitude to criminals in government.
President-elect Barack Obama has said he’ll keep Fitzgerald in the job, and we trust he’ll keep his word. But Fitzgerald, who serves at the president’s pleasure, has powerful enemies. They know that as his list of cooperating witnesses lengthens—convicted fundraiser Antoin “Tony” Rezko may be joining that club—so does his list of potential targets. Those with reason to fear Fitzgerald’s breath on their necks would love to see him dumped—or promoted high into Justice Department oblivion—when Obama takes office. . .
Obama can show his commitment to cleaning up this city and state by affirming that he meant what he said during the campaign: He wants Fitzgerald to stay. The sooner Obama silences speculation about the possible replacement of Fitzgerald, the better for both men: Obama will show that he’s a man of his word. And witnesses to corruption will know they aren’t cooperating with prosecutors who might soon have a new boss.
A key figure in the (presumptively) illegal search of government records on Joe the Plumber and the ensuing cover-up has been suspended:
Helen Jones-Kelley, director of the Ohio Department of Job and Family Services and former head of that department in Montgomery County, has been placed on paid administrative leave by Gov. Ted Strickland.
Strickland said on Friday, Nov. 7, that he took the action “due to the possibility, as yet unconfirmed, that a state computer or state e-mail account was used to assist in political fund raising.”
“I have asked Inspector General Tom Charles to include this matter in his current, ongoing investigation,” Strickland said in a press release. . . Charles already was investigating reports that a department computer was used to gather personal information about “Joe the Plumber” — Samuel Joseph Wurzelbacher of suburban Toledo.
Note that Jones-Kelley was not suspended for her illegal snooping, but for other (apparently unrelated) misconduct: using state resources for fundraising. The article doesn’t say who the (alleged) fundraising was for, but it’s not hard to guess; Jones-Kelley contributed the maximum to Barack Obama.
If Stevens holds on to win re-election, as it appears he will, and then is expelled by the Senate, what happens? Election Law explains it’s much as you might expect: Governor Palin will appoint a temporary replacement and then a special election will be called. However, a new Alaska law passed by voter initiative requires the special election be called sooner than you might expect, after just a few months.
When will Stevens be expelled? Harry Reid has indicated that he will not wait for Stevens’s appeal to be heard, but he needs a 2/3 majority, and it’s not clear whether Republicans agree. Personally, I hope they do. A criminal conviction should be more than enough.
It’s also been suggested that Stevens’s re-election after his conviction provides a presumption against expulsion. I don’t buy that at all. Surely plenty of Alaskans voted for Stevens anticipating that he would be forced from office and Palin would appoint a Republican successor. (That’s how I would have voted.) So under these circumstances, his narrow re-election can hardly be taken as an endorsement that he should remain in office.
UPDATE: Actually, it’s a bit more complicated. Apparently, it’s not entirely clear whether the Governor can appoint a temporary successor. It might be that the seat remains open until the special election.
The political investigation run by Democrats hedged, being unwilling to exonerate Palin fully, but the independent investigation did just that:
Gov. Sarah Palin violated no ethics laws when she fired her public safety commissioner, the state personnel board concluded in a report released Monday.
“There is no probable cause to believe that the governor, or any other state official, violated the Alaska Executive Ethics Act in connection with these matters,” the report says.
“Gov. Palin is pleased that the independent investigator for the Personnel Board has concluded that she acted properly in the reassignment of Public Safety Commissioner Walt Monegan,” her attorney, Thomas Van Flein, said in a statement.
The Ohio Department of Job and Family Services is in full cover-up mode over its illegal search into records pertaining to Joe the Plumber, but the cover-up is unraveling:
Vanessa Niekamp said that when she was asked to run a child-support check on Samuel Joseph Wurzelbacher on Oct. 16, she thought it routine. A supervisor told her the man had contacted the state agency about his case.
Niekamp didn’t know she just had checked on “Joe the Plumber,” who was elevated the night before to presidential politics prominence as Republican John McCain’s example in a debate of an average American.
The senior manager would not learn about “Joe” for another week, when she said her boss informed her and directed her to write an e-mail stating her computer check was a legitimate inquiry.
The reason Niekamp said she was given for checking if there was a child-support case on Wurzelbacher does not match the reason given by the Ohio Department of Job and Family Services.
Director Helen Jones-Kelley said her agency checks people who are “thrust into the public spotlight,” amid suggestions they may have come into money, to see if they owe support or are receiving undeserved public assistance.
Niekamp told The Dispatch she is unfamiliar with the practice of checking on the newly famous. “I’ve never done that before, I don’t know of anybody in my office who does that and I don’t remember anyone ever doing that,” she said today. . .
On Oct. 23, Niekamp said Doug Thompson, deputy director for child support, told her she had checked on “Joe the Plumber.” Thompson “literally demanded” that she write an e-mail to the agency’s chief privacy officer stating she checked the case for child-support purposes, she said. . .
The e-mail that Niekamp said she wrote was not among records provided today to The Dispatch in response to a public-records request. Nor did the agency, as required by state law, say it withheld any records.
There are two main developments here. First, Jones-Kelley’s story — that they always check on people who become famous — is a lie. This is no surprise, as no one believed her tale. (Indeed, it would have been far scarier if she had been telling the truth, that Ohio as a matter of policy investigates all newly famous people.)
Second, they are actively trying to cover up what they did, first by forcing Niekamp to write an email to cover for the illegal search, and then by hiding that email from the press. As they say; it’s not the crime but the cover-up.
When the story first broke, Ohio’s Democratic governor denied that the records were accessed for political purposes. Now he refuses to comment.
An Ohio official at the center of the controversy over the searches on Joe the Plumber into Ohio government databases revises her story:
A state agency has revealed that its checks of computer systems for potential information on “Joe the Plumber” were more extensive than it first acknowledged.
Helen Jones-Kelley, director of the Ohio Department of Job and Family Services, disclosed today that computer inquiries on Samuel Joseph Wurzelbacher were not restricted to a child-support system.
The agency also checked Wurzelbacher in its computer systems to determine whether he was receiving welfare assistance or owed unemployment compensation taxes, she wrote.
Shortly after the third debate, there were several suspicious searches in Ohio government databases for records pertaining to Joe the Plumber. If not conducted for some legitimate reason, which the timing makes extremely unlikely, this would be an illegal invasion of privacy.
One of the culprits is now known: she is Helen Jones-Kelley, the director of the Ohio Department of Job and Family Service. Ace notes that she is a $2300 contributor (the maximum) to the Obama campaign. She claims that she did not conduct the check for political reasons, but her explanation is even worse:
Helen Jones-Kelly, director of the Ohio Department of Job and Family Services, confirmed today that she OK’d the check on Samuel Joseph Wurzelbacher following the Oct. 15 presidential debate.
She said there were no political reasons for the check on the sudden presidential campaign fixture though the Support Enforcement Tracking System.
Amid questions from the media and others about “Joe the Plumber,” Jones-Kelley said she approved a check to determine if he was current on any ordered child-support payments.
Such information was not and cannot be publicly shared, she said. It is unclear if Wurzelbacher is involved in a child-support case. Reports state that he lives alone with a 13-year-old son.
“Our practice is when someone is thrust quickly into the public spotlight, we often take a look” at them, Jones-Kelley said, citing a case where a lottery winner was found to owe past-due child support. “Our practice is to basically look at what is coming our way.”
Jones-Kelley is claiming that the mere fact that someone has become famous is grounds for a government investigation! She’s probably lying, but if she’s not, there’s something seriously wrong at the Ohio Department of Job and Family Services. I’d actually prefer it if this were purely political.
ASIDE: Note the journalistic weasel-speak: “It is unclear if Wurzelbacher is involved in a child-support case.” Translation: we don’t know, but we want to insinuate that he might be.
For what it’s worth, Ohio’s Democratic Governor Ted Strickland would rather have you believe that the Ohio government routinely invades people’s privacy for no reason at all, than that they do it for political purposes:
Democrat Gov. Ted Strickland is satisfied that there are no political overtures to the check on Wurzelbacher, a spokesman said.
“Based on what we know to this point, we don’t have any reason to believe the information was improperly accessed or disclosed by a state employee,” said Keith Dailey, Strickland’s press secretary.
Toledo Police have confirmed that a TPD records clerk is accused of performing an illegal search of information related to ‘Joe the Plumber.’
Julie McConnell, has been charged with Gross Misconduct for allegedly making an improper inquiry into a state database in search of information pertaining to Samuel Wurzelbacher on Oct. 16.
Toledo Mayor Carty Finkbeiner admitted yesterday that a member of the media made the request of the Toledo Police Department for Joe ‘the Plumber’ Wurzelbacher’s records, NewsTalk 1370 WSPD is reporting. The comments were made in response to questions during an unrelated press conference.
Finkbeiner did not say which news outlet, nor which reporter, made the request. He also did not identify the individual who ran the report.
That’s two of the four searches discovered by the Columbus Dispatch. The culprits behind searches at the Attorney General’s office and the Bureau of Motor Vehicles have not yet been identified.
Thirteen campaign workers for Barack Obama yesterday yanked their voter registrations and ballots in Ohio after being warned by a prosecutor that temporary residents can’t vote in the battleground state.
A dozen staffers – including Obama Ohio spokeswoman Olivia Alair and James Cadogan, who recently joined Team Obama – signed a form letter asking the Franklin County elections board to pull their names from the rolls. . .
Earlier in the week, O’Brien spoke with lawyers for both camps and urged them to make sure their staffs met permanent-residency rules, or face possible felony charges.
Question 1: Haven’t we been told that bogus registrations never turn into bogus votes? Question 2: Shouldn’t Obama’s Ohio spokeswoman have known better?
The Ohio state patrol is looking into why, shortly after the third presidential debate, its motor vehicle database was used to investigate Joe the Plumber:
Samuel Joseph Wurzelbacher became part of the national political lexicon Oct. 15 when Republican presidential candidate John McCain mentioned him frequently during his final debate with Democrat Barack Obama.
The 34-year-old from the Toledo suburb of Holland is held out by McCain as an example of an American who would be harmed by Obama’s tax proposals.
Public records requested by The Dispatch disclose that information on Wurzelbacher’s driver’s license or his sport-utility vehicle was pulled from the Ohio Bureau of Motor Vehicles database three times shortly after the debate.
Information on Wurzelbacher was accessed by accounts assigned to the office of Ohio Attorney General Nancy H. Rogers, the Cuyahoga County Child Support Enforcement Agency and the Toledo Police Department.
It has not been determined who checked on Wurzelbacher, or why. Direct access to driver’s license and vehicle registration information from BMV computers is restricted to legitimate law enforcement and government business.
A Pennsylvania appeals court has ruled that when divorced parents cannot agree on how to educate their children, there is no presumption in favor of public schools. Instead, such matters are to be resolved by considering the best interests of the children, just as in other matters.
Virginia campaign officials for GOP presidential candidate John McCain are saying some Fairfax County absentee ballots — and possibly some in Hampton Roads — from overseas service members are being rejected over a technicality.
But the Fairfax registrar said he was following state law in rejecting a small number of absentee ballots that came in at the same time as the voter’s application.
Fairfax General Registrar Rokey Suleman said Thursday that he had had to reject some of the ballots because of a Virginia law passed in 2002. That law — then called Senate Bill 113, sponsored by then-state Sen. Bill Bolling — requires that when an overseas citizen wants to request an absentee ballot and cast a vote with the same paperwork, it requires not only a witness signature but the current address of the witness.
The McCain campaign said there’s not even a space for the witness to list an address. Suleman agreed; he said that the federal document was changed in recent years and that the space for the witness address was removed. But the Virginia law hasn’t changed.
Suleman said he brought up the issue last month at a Pew Foundation conference on overseas voting.
Now, he said, he’s getting hammered by the McCain camp as someone trying to prevent service members from voting.
“I can’t ignore the law,” Suleman said. “I think it stinks.”
The Daily Press apparently wasn’t able to determine whether Suleman has a party affiliation, but since it matters, but my crack research staff has determined that he is a Democrat. He recently made news when he held a voter registration drive at the county detention center.
Anyway, didn’t the Democrats establish a few years ago that in order to protect voting rights, the law should be “liberally construed“? I guess that’s only when the law doesn’t favor them.
Notch another right lost at the hands of the CHRC kangaroo court: the right to defend yourself in court. Ezra Levant notes that the CHRC “investigator” has censored his defense before forwarding it to the pseudo-judges that will rule on his case.
The redacted material is a recounting of the misconduct of CHRC investigators and complainants. That stuff is irrelevant in kangaroo court, apparently.
Obama calls for an ACORN-related investigation. Not, not into ACORN’s criminal activity, of course, but into press leaks about the investigation. I am not making this up:
Robert Bauer, general counsel to the Obama campaign, wrote to Attorney General Michael Mukasey a day after the Associated Press, citing unidentified law enforcement officials, reported that the Federal Bureau of Investigation was investigating ACORN. The name is short for Association of Community Organizations for Reform Now. . .
Bauer said the news leaks are part of a coordinated effort by McCain’s presidential campaign and Republicans. They are “fomenting specious vote-fraud allegations and there are disturbing indications of official involvement or collusion,” Bauer said.
“It is apparent,” he wrote, that law enforcement officials are serving “improper political objectives” that could inhibit voter participation in the Nov. 4 election. The aim is to “suppress the vote and to unduly influence investigations and prosecutions,” Bauer wrote.
That’s right, the real villains here are the investigators, not the people perpetrating vote fraud.
Tomorrow, when the media picks up Obama’s talking points, we will be treated to the spectacle of the media complaining about press leaks. Press leaks are good, you see, only when they hurt Republicans. Leaks that hurt Democrats are very bad. (See Armitage-Plame affair.)
UPDATE: Perhaps I’m mis-reading this. Another article says that Obama’s gripe is not with the press leaks, but with the very existence of the investigation:
Tensions began to escalate Thursday with disclosures that the FBI is investigating ACORN and the possibility that it’s engaged in a vote-fraud scheme.
On Friday, Obama’s legal counsel, Robert Bauer, wrote Attorney General Michael Mukasey, charging that the inquiry is politically motivated and that it risks repeating the 2007 scandal over the Bush administration’s politicization of the Justice Department.
Bauer asked Mukasey to broaden a special prosecutor’s investigation to examine the origin of the ACORN inquiry.
Now that’s chutzpah! ACORN submits thousands (at least) of bogus voter registrations, and it’s the investigation that’s improper.
Also, it’s pretty rich for Obama to complain about politicization of the Justice Department when his campaign asked Democrats in Missouri law enforcement to prosecute his critics.
Breaking news: the Supreme Court has issued a stay of an Appeals Court ruling requiring that Ohio verify 200,000 voter registrations with mismatched information. Few details yet.
The EFF thinks that McCain should care more about the free speech rights of individual citizens, and not just candidates. Fair enough. That’s not been his pattern, though.
Unfortunately, free speech advocates don’t have a horse in this race. McCain has long been a crusader for speech restrictions, and Obama looks to be even worse.
The problem with Wikipedia isn’t just that it is very often inaccurate. Perversely, the problem is also that on many matters, it is too good, which leads people to take it seriously. Off the top of my head, the two professions I think should least rely on Wikipedia are doctors and judges.
Alas, the Yale Daily News reports that its search of federal and state decisions reveals 247 Wikipedia citations in court decisions, including the recent Connecticut Supreme Court decision legalizing same-sex marriage.
ACORN has outdone itself in Indiana. They recently submitted 5000 new voter registrations in Lake County. Every single one of them that the county has checked, 2100 so far, was fraudulent. Unfortunately for the county, the law requires that they continue to check the remaining 2900.
When confronted with their fraud, ACORN’s lawyer says it’s partly the government’s fault:
BONUS: In their five-and-a-half minute story, CNN didn’t manage to mention whether ACORN has any ideological or party preferences. I don’t want to bash them too much — after all, they did run the story — but come on. Not only does this organization work to advance the Democratic party, it is actually paid by the Obama campaign.
David Post reflects on the state of economic liberty:
In a recent post, Eric Posner asks a very interesting question:
No one who believes that the government exploited fears after 9/11 to strengthen its security powers is now saying that the government is exploiting financial crisis fears in order to justify taking control of credit markets. No one who thinks that government would use fear to curtail civil liberties seems to think that government would use fear to curtail economic liberties. Why not?
Putting aside the question of whether it’s strictly correct to say “no one” . . . , I think Eric is on to something important, and I think I have the “answer” (sort of). The answer is: the vast majority of people place economic liberties on a decidedly lower plane than they place “civil” liberties.
Examples of this are everywhere. It’s one of the reasons why people who believe strongly in economic liberties get so angry in law school — it’s not just the way the Supreme Court has basically stripped away any constitutional protection for economic liberties while waxing poetic about civil liberties, it’s the way pretty much all of the professors and students seem to think this is perfectly sensible.
While musing about that, consider this item from the Tartan (CMU’s student paper):
The independence of Carnegie Mellon students living on Beeler Street is under the public eye and may soon be tested. In the past month, a grievance has been filed with the city citing a Pittsburgh ordinance that makes it illegal for landlords to rent out houses to a group of more than three unrelated residents.
This information was initially communicated to David Chickering, the Mudge housefellow and a resident of Beeler, at the beginning of this school year.
“I was going down the street, and I noticed that people from the city were looking at houses, and they let me know that there was a possible violation,” Chickering said. “Afterwards, I spoke to Councilman [William] Peduto’s office and he let me know that they were checking if there were possible code violations and that the Bureau of Building Inspections would investigate.”
This is a perfect case in point. Economic liberty matters. Who chooses to live together is none of the government’s business. Unfortunately, once money changes hands it becomes an “economic matter” and our protection against government intrusion disappears.
Naturally, students are upset at the prospect of being forced from their homes:
Carnegie Mellon students are concerned with the unfair nature of the law.
“Beeler has turned into a college student’s opportunity to find alternative housing, so if there is a house with rooms that could fit more than three residents then it seems unfair to students and landlords to restrict residence by an outdated law. Students are looking for economical housing,” said Yarden Harari, a senior architecture student and resident of Beeler Street.
This sentiment was echoed by other Beeler residents.
“It’s an unfair law because it’s mostly students living on Beeler. If we could have more people live in a house and pay less, why not? Technically, the house I am living in is $2400 a month, and if we split it between only three people, that would be $800 a month, which is ridiculous — if we are legally allowed to have up to four people on the lease, it makes more sense to split the rent among them,” said In-Kyoung Kim, a sophomore architecture major. . .
“It definitely seems like an outdated law, and honestly I can’t really see the purpose of the law in the first place. I would argue that it should not affect me or my peers at all, seeing as it should be the landlord’s responsibility, not ours, to make sure that they are being consistent with Pittsburgh ordinances,” Kumar said.
All of this misses the point. Of course people have good reasons to share a house, but what those reasons are should matter not a whit. No one should have to justify their choices to the government just because money changes hands. It’s a free country, after all.
The Democrats should really think again about whether winning elections is more important than the integrity of the system. We’re headed for a complete breakdown of public confidence in the democratic process. Is that really what they want? An unelected government will lose any moral authority it ever had. A minimalistic government might survive that, but the Democrats want to use the government to carry out grand feats of social engineering. Doing so without the acquiescence of the people will be very hard, or very dangerous.
They are largely invisible, and sometimes as simple as a small, plastic marker affixed to a utility pole. There’s an eruv around the White House and one in Manhattan that sprawls from the East River to the Hudson.
Now, in a village at the gateway to the Hamptons, the wealthy eastern Long Island playground, a battle has erupted over this religious symbol for Orthodox Jews, pitting them against their more secular neighbors.
Rabbi Marc Schneier, who counts New York Gov. David Paterson among his friends, wants the Westhampton Beach mayor and village board to approve the placement of the religious boundary called an eruv, which would allow observant Jews to perform minor tasks on their Sabbath or on religious holidays like Rosh Hashana, which was observed on Tuesday and Wednesday.
The proposal has stirred controversy among the 2,000 full-time residents of Westhampton Beach, a community 75 miles east of Manhattan where the population can grow to 20,000 in the summer. Mayor Conrad Teller says 85 percent of village residents oppose the eruv. . .
Opponents worry that if the eruv is established, Westhampton Beach — a wealthy community but one less glitzy than its better known neighbors Southampton and East Hampton — may evolve into an Orthodox enclave.
The mayor, who declined to take a position on the eruv because he may eventually have to vote on it, believes those fears are overblown. He said the village has retained an attorney to research the constitutional issues.
Another opposition group, the Alliance for the Separation of Church and State in the Greater Westhampton Area, also has hired an attorney.
Their leader, Mark Williams, says the alliance is concerned that village approval would amount to sanctioning a particular religion — and is unconstitutional.
A typical eruv is essentially invisible, and serves only to allow Orthodox Jews to go about their lives while adhering to their interpretation of Jewish law governing the sabbath.
The usual suspects say that an invisible line on public property violates the separation of church and state. To the contrary, a federal appeals court has ruled that, not only is an eruv constitutionally permissible, it must be allowed if the municipality allows any other attachments to telephone polls, such as flyers:
A group of Orthodox Jews in Tenafly, N.J., won a six-year battle in 2006 to create one. A federal judge had ruled the borough had the right to ban the eruv, but an appeals court disagreed, saying the borough had selectively enforced the ban on utility pole attachments. The U.S. Supreme Court refused to hear the case.
It’s not about anti-Semitism, opponents say:
Several groups have sprung up to fight it, including Jewish People Opposed to the Eruv.
“The objection to the eruv has nothing to do with religion, per se,” said group chairman Arnold Sheiffer, a semiretired advertising executive. “What they object to is creating a division in the village where none ever existed.” . . . Their intention, he says, is to blunt talk that anyone opposed to the eruv is anti-Semitic.
So it’s not about opposition to Jews, just Orthodox Jews. That’s so much better.
The American author of a best-selling book attacking Barack Obama as unfit for the presidency was being deported from Kenya on Tuesday, a criminal investigations official said.
Jerome Corsi, who wrote “The Obama Nation: Leftist Politics and the Cult of Personality,” was picked up by police Tuesday for not having a work permit, said Carlos Maluta, a senior immigration official in charge of investigations.
He was briefly detained at immigration headquarters before being brought to Jomo Kenyatta International Airport for deportation, said Joseph Mumira, head of criminal investigations at Jomo Kenyatta International Airport.
NPR reports further (no link, sorry) that Corsi was arrested at the hotel where he was about to launch the Kenyan edition of his book.
Will Obama issue a statement defending Corsi’s right to free speech? We’ll see.
UPDATE: It appears that the government has a damning case. According to the affidavit, ACORN was hiring criminals on work-release from a state prison to commit identity theft. (Via the Corner.)
The Anglican Church is a peculiar one. It is the official church of England and headquartered in London, but most of its adherents are outside the English-speaking world (especially Africa). It is a worldwide denomination without any centralized authority. Its nominal leader, Rowan Williams, was appointed by a British politician, Tony Blair, who happens to be Catholic. Overall, it is strongly orthodox, but it has a powerful non-orthodox minority.
All these factors contribute to the crisis that now exists in the Episcopal Church (an American branch of the Anglican church). Within the Episcopal Church, orthodox Christians (who hold traditional Christian positions on the person of Jesus and the authority of the Bible) find themselves in the minority; the majority “progressives” wish to make the faith more compatible with modern views.
Non-Anglicans are most familiar with the conflict over sexuality, but that conflict is merely a sideshow, next to central disagreements over the divinity of Christ, his unique redemptive purpose, the Resurrection, and the authority of the Bible. The conflict has simmered for a long time, and although the consecration of Gene Robinson as bishop of New Hampshire (Robinson divorced his family to live openly with a gay partner) worsened existing divisions, it wasn’t until the election of Katharine Schori as Presiding Bishop that the conflict exploded.
Schori was seen as a compromise candidate, progressive but moderately so. She has proven to be anything but moderate, as she showed in an NPR interview before she even took office:
Christians understand that Jesus is the route to God. Umm– that is not to say that Muslims, or Sikhs, or Jains, come to God in a radically different way. They come to God through… human experience… through human experience of the divine. Christians talk about that in terms of Jesus.
A tolerant and multicultural statement this may be, but a Christian one it is not. Unfortunately, this is just one of Bishop Schori’s many statements denying basic tenets of the Christian faith, and she is far from alone. As just one other example, the Episcopal Bishop of Los Angeles recently apologized to Hindus for Christianity’s efforts to evangelize them.
Anglicanism has a long tradition of “comprehensiveness,” which refers to orthodoxy in central matters but tolerance in secondary ones. Unfortunately, the progressives have moved from secondary issues on to central ones, and their church soon will no longer be recognizable as a Christian one. (Schori’s NPR interviewer insightfully asked “What are you, a Unitarian?” Schori did not answer.)
It was in this context that the Episcopal Diocese of Pittsburgh last year began the process of leaving the Episcopal Church. Several provinces of the Anglican Church offered to accept Pittsburgh into their fold, including the Southern Cone (in South America).
Many were loath to leave the Episcopal Church, feeling that it would be better to remain and try to change it from within. Those voices were undermined, however, by Katharine Schori’s decision to depose Robert Duncan, the bishop of Pittsburgh. Ordinarily, deposition of a bishop requires a trial, but that would have required an actual charge, and would have taken a considerable amount of time. Instead, Schori used a provision called “abandonment of communion,” intended to deal officially with the departure of bishops who had left for the Roman Catholic church. Safeguards exist to prevent a charge of abandonment of communion in controversial cases (such as a bishop who had not yet left), but Schori ruled that those safeguards were inoperable.
In the end, the vote to realign and join the Southern Cone was not close. Clergy voted 121-38, and laity voted 119-72 (including abstentions and spoiled ballots). Vote counters indicated that nearly every swing vote sided with realignment in the end. Archbishop Venables of the Southern Cone immediately moved to welcome the Diocese of Pittsburgh, and appointed Duncan its caretaker bishop until Duncan can officially be re-elected next month.
After the vote, Katharine Schori issued a statement, saying:
“There is room in this Church for all who desire to be members of it.” She also said schism is not an “honored tradition within Anglicanism” and is “frequently been seen as a more egregious error than charges of heresy.”
In other words, unity is more important than truth.
The struggle does not end with the decision to realign. All observers now expect that the Episcopal Church will quickly file suit in secular court to confiscate the property of the Diocese. Historically, church property belonged to individual dioceses, but in 1979 the Episcopal Church passed the Dennis Canon, which asserts that all church property actually belongs to the national church. In 2006, after a lengthy court battle, the Episcopal Church took control of the Church of St. James the Less and shuttered it, and it remains empty today. However, differences in legal circumstances suggest that the Diocese is more likely to prevail in this case.
The media is beginning to understand the nature of the conflict. Although generally still biased against orthodox Christians, they are beginning to understand that the conflict is not about homosexuality, but much more fundamental issues. For example, the New York Times wrote yesterday:
The movement is driven by theologically conservative leaders who believe the church has turned away from traditional biblical teachings on issues like whether Jesus is the son of God and the only way to salvation.
Not much to add that’s not totally obvious, but there is this:
The verdict came 13 years to the day after Simpson was cleared of murdering his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman, in Los Angeles in one of the most sensational trials of the 20th century.
(Emphasis mine.) Note to the Associated Press: I believe the word you’re looking for is “acquitted.”
The state argued that the case should be reopened because Justice Anthony Kennedy relied in part on what he called a “national consensus” against executing convicted rapists. The court split 5-4 in the June 25 ruling. . .
The provision of military law setting out punishments for rapists “does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional,” Kennedy wrote, joined by the four liberal justices who formed the majority in June. . .
The number of jurisdictions that allowed for capital punishment for rapists was irrelevant to the court’s decision, Scalia said. Instead, the justices in the majority employed their independent judgment to say the Constitution forbids executions when the defendant does not kill the victim, he said.
“There is no reason to believe that absence of a national consensus would provoke second thoughts,” Scalia said, noting his strong disagreement with the initial ruling.
Berkeley’s infamous tree-sitters have been hit with a rude surprise since they came down to earth: Judges are socking them with thousands of dollars in fines and legal fees.
Ironically, much of the money – which could total more than $10,000 per sitter – is going straight to the University of California, the very institution the tree-sitters were protesting as they tried to save a grove of trees outside Memorial Stadium. . .
UC Berkeley estimates it spent more than $800,000 on police and other security measures during the 22 months sitters were up in the trees. The university spent $40,000 alone on the scaffolding that went up around the final tree during the last day of the protest this month. . .
So far, most of the 15 to 20 protesters arrested in the past year have been hit with fines of about $100 for trespassing and little or no jail time.
Once they were back on the street, however, the university hauled them back into court on contempt charges for violating an order issued in October by Judge Richard Keller of Alameda County Superior Court that banned people from sitting in the trees or doing anything to help the protesters already up in the branches.
Protesters Eric Eisenberg, Michael Schuck, Gregg Horton, Terri Slanetz and Matthew Taylor were found guilty last month of violating Keller’s injunction. Each was ordered to pay a $1,000 fine, and two were sentenced to serve five extra days in jail.
The university is also seeking as much as $10,000 from each of them for its attorney fees. . .
Lawyers on both sides said the tree-sitters’ chances of beating the contempt charges are slim.
As Cunningham noted, “You were either up in the trees or not. What’s to argue?”
Defying the government is sometimes the right thing to do, but you have to weigh the expected benefit against the expected cost. I think these protesters failed to do so.
The Washington Times reports that a bill before the DC city council would bring DC in line with the Heller decision in two major respects:
D.C. Council member Phil Mendelson says he will propose regulations Tuesday that would legalize semi-automatic handguns in the District because the stopgap legislation the council passed in response to a Supreme Court ruling “would not stand up to judicial scrutiny.” . . .
Mr. Mendelson, at-large Democrat, said the bill will refine the city’s definition of machine guns by using wording from other jurisdictions and the federal assault-weapons ban, which has since expired. The bill also will cap at 10 the number of rounds a semi-automatic gun magazine can hold. . .
Most jurisdictions and federal law generally define machine guns as those capable of firing multiple rounds with a single press of the trigger or guns that can be modified easily to do so.
The bill also will change safe-storage provisions to advisory regulations – meaning gun owners would no longer be required to keep their guns unloaded, locked up or disassembled – but will create criminal penalties for gun owners who give children access to guns.
It remains to be seen if the bill will pass. Even if it does, left unaddressed are the administrative obstacles DC has erected to legal firearm registration, and DC’s prohibition against carrying firearms outside the home.
The Michigan Supreme Court has affirmed a lower court ruling keeping the “reform” initiative off the ballot. (Via Volokh.)
Here’s a reminder of what the Democrats were trying to pull. In their own words, the initiative’s purpose was “changing the rules of politics in Michigan to help Democrats.” This was cynical even for Democrats.
WHEREAS, September 5, 2007, will mark the 337th anniversary of the day when the jury, in the trial of William Penn, refused to convict him of violating England’s Conventicle Acts, despite clear evidence that he acted illegally by preaching a Quaker sermon to his congregation.
WHEREAS, by refusing to apply what they determined was an unjust law, the Penn jury not only served justice, but provided a basis for the U.S. Constitution’s First Amendment rights of freedom of speech, religion, and peaceable assembly.
WHEREAS, September 5th, 2007, also commemorates the day when four of Penn’s jurors began nine weeks of incarceration for finding him not guilty. Their later release and exoneration established forever the English and American legal doctrine that it is the right and responsibility of the trial jury to decide on matters of law and fact.
WHEREAS, the Sixth and Seventh Amendments are included in the Bill of Rights to preserve the right to trial by jury, which in turn conveys upon the jury the responsibility to defend, with its verdict, all other individual rights enumerated or implied by the U.S. Constitution, including its Amendments.
NOW, THEREFORE, I, Sarah Palin, Governor of the State of Alaska, do hereby proclaim September 5, 2007, as:
Jury Rights Day
in Alaska, in recognition of the integral role the jury, as an institution, plays in our legal system.
Most people don’t yet see how sinister Google is. Maybe this will start to change that. The click-through license for Google’s new browser Chrome includes this:
11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
. . .
11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.
So anything you do on Chrome, you are giving to Google. If you’re not authorized to give it to Google, you are in violation of the license.
UPDATE: Wikipedia says that you can bypass the license by downloading the source and building it yourself. (Of course, that’s Wikipedia, so I can’t warrant that it’s true.) If so, I hope that someone will set up a site to distribute the non-license version.
UPDATE: Google says that this section was a cut-and-paste mistake, and they are removing it. I don’t really buy the explanation, but I’m glad they’re changing it.
Osama bin Laden’s former driver was convicted on one charge and acquitted on another Wednesday, handing the Bush administration a partial victory in the first U.S. war crimes trial in a half-century but failing to settle the debate over whether the proceeding was just.
A six-member military jury found Salim Ahmed Hamdan guilty of supporting al-Qaeda by driving and guarding the terrorist leader. The jurors found him not guilty of conspiring with bin Laden in terrorist attacks. The same uniformed jurors will hold another hearing Wednesday afternoon to determine a sentence.
Or else the FCC won’t approve their merger, according to a press release by the Mountain States Legal Foundation, who is suing:
A demand by a federal agency that two companies agree to a race-based set aside as a condition to approval of their merger today drew a warning that the provision is unconstitutional from a western, nonprofit, public-interest law firm known for civil rights litigation. In a letter to the Federal Communications Commission (FCC), Mountain States Legal Foundation (MSLF) warned the agency that its demand that, as a condition to its approval of a proposed merger between XM and Sirius satellite radio companies, the companies set aside 8 percent, or 24 channels, for “educational and minority broadcasters” violates the Constitution’s equal protection guarantee. MSLF advised the FCC that, although the agency’s use of racial preferences to achieve “diversity” was upheld by the U.S. Supreme Court in 1990, that ruling was overturned in 1995. As a result, argues MSLF, the FCC has no legal basis to demand use of racial preferences or quotas.
The District of Columbia has made it clear that it will not abide by a mere order from the US Supreme Court. So far it has:
Denied citizens the right to possess semi-automatic handguns, despite their being the most popular weapons for self defense, despite a clear analogy to the Court’s finding that:
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
Denied Dick Heller a permit for his handgun, violating the Court’s order that:
Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
Now they’ve gone to the ruling’s central holding. The Court found that:
In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.
“Immediate self-defense” seems clear, doesn’t it? That means that your gun can be assembled, loaded, unlocked, and available. Otherwise you can’t use it immediately. DC doesn’t agree, reports Washington Post blogger Marc Fisher:
The D.C. officials read the decision as an almost academic ruling that although there may be a constitutional right to bear arms to protect yourself, that right is pretty much limited to folks whose house is being broken into right this very second. . . [DC Attorney General] Nickles said “it’s clear the Supreme Court didn’t intend for you to have a loaded gun around the house. . .
D.C. gun owners would be prohibited from keeping their gun loaded unless they could demonstrate that the firearm is “being used against a reasonably perceived threat of immediate harm.”
What does that mean? “Somebody’s approaching your home,” Nickles offered. Or “an actual threat by somebody you believe is out to hurt you.”
How about if there’s been a break-in next door? That’s close, the attorney general said. . .
“I don’t think they intended that anybody who had a vague notion of a threat should have access to a gun,” [DC Mayor] Fenty told me.
(By the way, I was wrong about this and Glenn Reynolds was right. I gave DC too much credit.) They also plan to tie up any gun registrations in red tape:
The mayor and the D.C. Council are enacting emergency law setting up a cumbersome mechanism by which someone who wants to own a gun legally may register a weapon if they clear a background check, pass a vision test and a written test of gun safety knowledge, pay a fee and wait for the bureaucracy to push through all these steps. “There are circumstances where it could take months,” Police Chief Cathy Lanier conceded, and you could almost hear the elected officials around her emitting “heh-hehs” of mischievous delight.
I think this is actually good news, as long as you don’t live in DC, that is. This will keep the legal conflict alive on the most favorable possible terms, in the very place where the Circuit Court and Supreme Court have already found in favor of the right to bear arms.
In its Heller decision, the Supreme Court ordered (pdf, page 64):
Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
District residents can start registering their guns today. But at least one very high profile application was already rejected.
Dick Heller is the man who brought the lawsuit against the District’s 32-year-old ban on handguns. He was among the first in line Thursday morning to apply for a handgun permit.
But when he tried to register his semi-automatic weapon, he says he was rejected. He says his gun has seven bullet clip. Heller says the City Council legislation allows weapons with fewer than eleven bullets in the clip. A spokesman for the DC Police says the gun was a bottom-loading weapon, and according to their interpretation, all bottom-loading guns are outlawed because they are grouped with machine guns.
The Supreme Court’s order was qualified in only one way, that Heller has not been disqualified from his Second Amendment rights. There was no qualification about Heller’s handgun being a revolver, or any other specific sort. I don’t see how this can stand.
I have to say this is clever on Heller’s part. With a Supreme Court decision to back him up, he’s uniquely positioned to force this issue.
DC is set to pass a new gun law in response to Heller:
The District of Columbia Council planned to vote Tuesday on emergency legislation to allow handguns, but only if they are used for self-defense in the home and carry fewer than 12 rounds of ammunition.
The legislation announced Monday comes as officials try to comply with a U.S. Supreme Court ruling last month striking down the city’s 32-year-old weapons ban.
The proposal, which maintains some of the city’s strict gun ownership rules and adds more regulations, was immediately criticized by gun rights advocates. They threatened more legal action.
The nation’s capital would still require all legal firearms — including handguns, rifles and shotguns — to be kept in the home unloaded and disassembled, or equipped with trigger locks. There would be an exception for guns used against the “reasonably perceived threat of immediate harm.”
The proposed legislation also maintains the city’s unusual ban of machine guns, defined as weapons that shoot at least 12 rounds without reloading. That applies to most semiautomatic firearms.
“We have crafted what I believe to be a model for the nation in terms of complying with the Supreme Court’s Second Amendment decision and at the same time protecting our citizens,” interim Attorney General Peter Nickles said.
The new law would comply with the extremely narrow relief requested by and granted to the plaintiff in Heller. But, it certainly does not comply the Constitutional requirements set down by Heller. First, there is the Court’s interpretation of “bear arms”:
At the time of the founding, as now, to “bear” meant to “carry.” . . . When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose— confrontation. In Muscarello v. United States, . . . in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.”
I don’t see how a requirement to keep firearms within the home and disassembled can be reconciled with the right to bear arms, as seen in Heller.
I believe the decision also speaks to the provision that would permit only revolvers:
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
This seems to indicate that Americans have the right to an appropriate weapon for self-defense, and that in particular that the prohibition of the most popular weapon is invalid. Semi-automatic pistols are the most popular weapon chosen for self-defense in the home, so the same principle should apply as for handguns in general, at least if plausible reasons can be given for preferring them. It’s not hard to come up with such reasons, since they are the same reasons DC wishes to ban them.
UPDATE: According to Glenn Reynolds, this is too charitable. He reads the “reasonably perceived threat of immediate harm” exception to apply only when an intruder has already broken into your house. Only then could you start assembling your gun. That would make the exception useless, and plainly violate Heller. There’s also a questionable vision test, which I missed.
The DC delegate to the US House of Representatives says:
“In many ways, the decision was a huge stretch, a stretch around the Second Amendment itself because the Second Amendment starts saying exactly what it is about.
“It was about a country that was very afraid that creating a central government which would have an army, would leave the states disempowered to, in fact, handle themselves,” Ms. Norton continued. “The states were sure that these militias could always be armed.
“This court, which calls itself a conservative, strict constructionist court, simply reached around that, called it a preamble and said the use of the words ‘militia’ and ‘people’ was about individual rights. When you look at all of the amendments, six other amendments, the word ‘people’ is used, it is referring collectively, usually to the states,” Ms. Norton said.
Wow. Of course, the court does not call itself conservative or strict constructionist. In fact, Antonin Scalia has been quite critical of the doctrine of strict construction, calling it better “I suppose” than non-textualism, but still “a degraded form of textualism that brings the whole philosophy into disrepute.”
Also, the Heller decision actually deals very carefully indeed with the prefatory clause. Moreover, not one of the nine Justices endorsed Norton’s collectivist interpretation. (Modern legal scholarship makes that almost impossible.)
But, we can’t be surprised by any lack of sophistication from someone who thinks that all these amendments are about collective rights of the states:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
A man who doesn’t like the Bible’s teaching on homosexuality (1Co 6:9 in particular) is suing Zondervan, a major Bible publisher:
Christian publisher Zondervan is facing a $60 million federal lawsuit filed by a man who claims he and other homosexuals have suffered based on what the suit claims is a misinterpretation of the Bible.
But a company spokeswoman says Zondervan doesn’t translate the Bible or own the copyright for any of the translations. Instead, she said in a statement, the company relies on the “scholarly judgment of credible translation committees.”
That is to say, setting aside whether the federal civil rights lawsuit is credible, the company says Bradley Fowler sued the wrong group.
His suit centers on one passage in scripture — 1 Corinthians 6:9 — and how it reads in Bibles published by Zondervan.
Fowler says Zondervan Bibles published in 1982 and 1987 use the word homosexuals among a list of those who are “wicked” or “unrighteous” and won’t inherit the kingdom of heaven.
Fowler says his family’s pastor used that Zondervan Bible, and because of it his family considered him a sinner and he suffered.
Now he is asking for an apology and $60 million.
Opponents of Christianity have been suing Christians in Canada for years (and winning), so it was only a matter of time until it was tried here. This suit is flawed in so many ways that it should quickly be thrown out, but that will only make them try harder.
If so, does the Logan Act apply? FARC isn’t a foreign government, but Venezuela certainly is, so I think the case could be made.
Not that it matters; no one has ever been prosecuted under the Act. Last year’s pratfall in Damascus (as the Washington Post put it) was as clear a violation of the Logan Act as you’re likely to see, but the Act was never even brought up.
The Washington Post calls for the Supreme Court to issue a correction in Kennedy v. Louisiana:
When a newspaper gets its facts wrong, it’s supposed to publish a correction, and, if someone’s reputation has been harmed, a retraction and apology. It can be embarrassing, but the occasional taste of crow probably does more good than harm to the media’s credibility.
But what if the Supreme Court not only blows a key fact but also bases its ruling, in part, on that error? There was quite a goof in the court’s 5 to 4 decision on June 25 banning the death penalty for those who rape children.
In his execrable opinion overturning Louisiana’s death penalty for child rape, Justice Kennedy made an important factual error:
When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.
This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.
This is embarrassing for Justice Kennedy, but it ought to be beside the point. The whole point to federalism is that states should be able to make their own laws. What is or is not the law in other jurisdictions ought to be irrelevant. Under Kennedy, the legitimacy of our own state’s laws can depend on other states and/or the Federal government passing similar laws.
(ASIDE: It’s actually worse than that. Florida also has such a law, but it was discounted (page 13-14) because it was overturned by Florida courts. Thus, the legitimacy of your state’s laws depend not only other other states’ laws, but their judiciaries as well.)
So, what’s the threshold? How many states need to pass a law before it becomes legitimate? Evidently more than six, but is ten enough? Fifteen?
Well, perhaps we can make some good out of this. If fourteen states aren’t enough, then we can invalidate some states’ 55-mph (or lower) urban speed limits. (Hawaii’s 50 mph should definitely go!) Only five states require handgun registration; that’s definitely below threshold.
David Bernstein looks at which justices are more likely to protect individual rights:
The Supreme Court’s decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support “individual rights” and “civil liberties,” while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.
Or perhaps it’s not as remarkable as we’ve been led to think. Consider the Court’s First Amendment decisions. Contrary to popular belief, conservative justices are about as likely to vote in favor of individuals bringing First Amendment challenges to government regulations as are the liberals. Indeed, the justice most likely to vote to uphold a First Amendment claim is the “conservative” Justice Anthony Kennedy. The least likely is the “liberal” Justice Stephen Breyer. Consistent with general conservative/liberal patterns in commercial speech cases, Justices Clarence Thomas and Antonin Scalia have voted to invalidate restrictions on advertising more than 75 percent of the time. Justices Breyer and Ruth Bader Ginsburg, meanwhile, have voted to uphold such restrictions in most cases.
Glenn Reynolds makes an interesting observation about the Heller opinions:
What’s most striking about Heller is that absolutely everybody — majority and dissents — says the Second Amendment protects an individual right.
It’s true that the dissenters’ view of that right is somewhere between “minimalist” (to be charitable) and “incoherent” (to be accurate). But nonetheless, all nine Justices specifically said the right is individual, and thus rejected the “collective right” position on the Second Amendment, a position that’s been the mainstay of gun-control groups, newspaper editorialists, and lower federal courts for decades, and one that was presented by those adherents as so obviously correct that those arguing for an individual right were called “frauds” and shills for the NRA.
Yet the collective right theory could not command a single vote on the Court when actually tested. It was, it seems, a paper tiger all along.
I think the reason for this is all the Second Amendment scholarship in recent decades. I guess law professors are good for something other than blogging after all!
Still working my way through the opinion. Scalia’s logical analysis of the Second Amendment was surprisingly enjoyable reading.
There was one bit I particularly liked. After demolishing the idea that the term “bear arms” (when not followed by “against”) was an idiom for military activity, the opinion goes on:
In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
A Virginia court today upheld an Virginia law that blocked the Episcopal Diocese of Virginia from confiscating the property of its dissident congregations. (Opinion here (big pdf).) Many conservative parishes are leaving the Episcopal Church over a host of issues (most famously — but less importantly — over issues regarding sexuality) that call into question whether the Episcopal Church is even Christian any more. Episcopal Dioceses have responded by attempting to confiscate the property of congregations that secede, but the Diocese of Virginia has been blocked by an 1867 law called the Division Statute.
The Diocese laments that the Division Statute is “uniquely hostile to religious freedom,” which is strikingly audacious, given that the Diocese itself is attempting to persecute dissident congregations for exercising their religious freedom. I sympathize with the idea that the court should not involve itself in the affairs of a church, but the Diocese of Virginia initiated that involvement itself by suing the dissident congregations for their property. (Contrary to the Bible’s teaching (1Co 6:1-8), I might add.)
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. . . Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. . .
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. . . “ ‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ”
With this enlightening footnote:
JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. . . But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.
In interpreting [the Second Amendment], we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the
founding generation.
The Supreme Court has ruled that the Second Amendment protects an individual right to own guns. (Opinion here.) According to Tom Goldstein, “The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is. So today’s ruling likely applies equally to State regulation.” (UPDATE: More on incorporation from Eugene Volokh.)
The vote was 5-4, which leaves the matter intact as a political issue. This probably helps McCain.
Finally, there’s this gem:
In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”
For Justice Stevens to suddenly discover the idea of original intent is the height of chutzpah. Moreover, his application is complete nonsense; the Framers weren’t contemplating the regulation of civilian weapons one way or the other.
UPDATE: The bit about a “well regulated Militia” is directly addressed on page one of the syllabus:
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
UPDATE: Megan McArdle wonders what would have happened if Michael Bellesiles had never been shown to be a fraud. (Via Instapundit.)
Bizarrely, the decision seems to hinge on “a national consensus against capital punishment for the crime of child rape.” This is that sort of national consensus that exists without the participation of the people, I guess.
The Motion Picture Association of America said Friday intellectual-property holders should have the right to collect damages, perhaps as much as $150,000 per copyright violation, without having to prove infringement.
“Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances,” MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.
These people must have taken a course on how to keep a straight face.
Unbelievably, this is not the Onion. The Globe and Mail reports:
First, the father banned his 12-year-old daughter from going online after she posted photos of herself on a dating site. Then she allegedly had a row with her stepmother, so the father said his girl couldn’t go on a school trip.
The girl took the matter to the court – and won what lawyers say was an unprecedented judgment.
Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday that the father couldn’t discipline his daughter by barring her from the school trip.
Now that the children of the FLDS cult are going home, we can expect the story to recede from the front page for a while. It will be back, however, when the state begins individual prosecutions for sexual abuse. When it does, there will be those who claim that those cases retroactively justify the state’s stunning removal of all the children. We should point out now that they will not.
According to the Texas Court of Appeals, no more than five children have been shown to be at risk. Those children should be protected and their abusers prosecuted, but that endeavor is wholly separate from what they did: remove 430 children (and some adults) from distinct families and dump them all in foster care. Moreover, he state’s precipitous action may end up tainting its case when it does bring individual prosecutions, thereby further harming those children.
On Thursday the Texas Supreme Court ruled that the State erred when it took hundreds of children from their families in the ranch of the FLDS cult. Eugene Volokh points out that the primary error was the State’s failure to treat cases individually. Instead, the State treated the entire ranch as a single “household” and removed all its children (and some adults), most of whom were in no immediate risk.
Now, Judge Barbara Walther, who rubber-stamped the original removal of the children, has compounded her error. Child Protective Services came to a legal agreement with the mothers wherein:
The families won’t be able to leave Texas until Aug. 31 but would be allowed to move back to the ranch. It also calls for parenting classes and visits by CPS to interview children and parents in the child abuse investigation.
Judge Walther first tried to change the agreement, and after being rebuffed, ruled that no children could be returned until every one of the mothers signed the agreement. (Since the mothers are spread throughout the state to be close to their children, this adds a significant delay, which may well have been the judge’s purpose.) It’s hard to fathom any reasonable justification to delay one reunion because a separate family has not yet signed the agreement. Furthermore, it exhibits an amazing judicial arrogance, since the Texas Supreme Court already ruled she was wrong not to treat the families individually.
The principle of individuality is important. I expect that the courts eventually will decide that some of the children are in danger and should be removed for their protection, but such decisions must be based on the facts of those particular cases. If the government can take away your children merely because the children of another family might be at risk, then no one is safe.
Orin Kerr has a very interesting theory regarding why we aren’t seeing as many 5-4 decisions. It has to do with a clever strategy by Chief Justice Roberts. I won’t try to summarize.
An article from last week’s Economist drew my attention to business-method patents, which I hadn’t been aware of before. For the last ten years, it seems, the Patent Office has allowed patents on business strategies. For example, Priceline holds a patent on the method of using Dutch auctions to sell tickets.
All patents are fundamentally anti-competitive, but patenting business methods seems particularly egregious. Therefore, it seems like good news that the US Court of Appeals is considering overturning the case that allowed them.
On the other hand, the NYT quotes one observer who is not bullish about the chances that business-method patents will be overturned, commenting: “Definitions of business method patents always end up being circular. You can’t really ban something unless you can define it and no one is offering a definition we can use.”
The Prior Art, an IP blog, has been following the case and has some other interesting thoughts.
TaxProf Blog reports that yesterday the US Tax Court issued an astounding opinion finding that the IRS committed a fraud on the court affecting over 1300 cases. (Via Instapundit.) The post doesn’t really make it clear (to me anyway) what was at issue, so I went looking for a news story. Finding none (I guess massive fraud by the IRS isn’t newsworthy), I thought I’d see if I could decipher the opinion itself (pdf link).
Here’s what I gather from reading the opinion: The IRS and Tax Court have developed a “test case” procedure to streamline the litigation of large volumes of cases resulting from tax shelter examinations. How it works is that “a few typical cases are selected and most taxpayers whose cases are not selected execute ‘piggyback agreements’ binding the resolution of their cases to the outcome of the final decision in the test cases.” (Page 15.)
In the examination of one particular tax shelter (named after its inventor, Henry Kersting), the IRS secretly arranged for the test case subjects to settle their cases on terms favorable to the IRS (that is, unfavorable to the taxpayer). From page 22:
In December 1986 [Attorney Kenneth] McWade, with the knowledge and connivance of his supervisor, Honolulu District Counsel William A. Sims (Sims), entered into secret contingent settlement agreements with the Cravenses regarding their test cases and with DeCastro regarding the Thompsons’ test cases. The Thompsons and the Cravenses understood that a condition of these settlements was that they would remain test case petitioners. The Cravenses, who were not represented by counsel, agreed with McWade to a reduction of about 6 percent of the originally determined deficiencies for their taxable years 1979 and 1980. This settlement was less favorable to them than the generally available modified 7-percent reduction settlement offer and did not include the burnout.
There seem to be numerous complications and misconducts on top of this, including an illegal IRS search, but the gist is that the IRS defrauded all the people who trusted them to litigate the test cases honestly. (Incidentally, anyone who didn’t agree to a piggyback agreement had to litigate their case in Maui, which is a very nice place to vacation, but probably an expensive and impractical place for a protracted court battle.)
Finally, note that it took the Tax Court 22 years to hold the IRS accountable for its fraud.
Posted by K. Crary 
Internet Scofflaw 
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