CONSTITUTIONAL CRISIS
George W. Bush has plunged the country into the kind of Constitutional crisis that was resolved in 1974 by the issuance of articles of impeachment against Richard Nixon and Nixon’s subsequent resignation. Make no mistake about it – the Fourth Amendment of the Constitution covers telephone communications, and warrants are required for wiretaps. (See for example, Berger v. New York, 388 U.S. 41 <1967>*). Federal judges can and do quickly issue warrants authorizing wiretaps whenever the government shows the need. George W. Bush cannot and does not claim that the judges have been stingy with such warrants; rather he claims that the legal and constitutional requirements simply do not apply to him. As if that were not bad enough, he also claims the authority to spy on peaceable American citizens who are engaging in traditional American freedom of speech and assembly. Make no mistake about this – Bush’s claim of the authority to wiretap Americans’ telephones without warrants and to spy on peaceful First Amendment activities is in brazen defiance of the Constitution.
George W. Bush’s arrogant claim that the "executive power" referenced in Article II of the Constitution authorizes him to override the First and Fourth Amendments is a declaration of war against the very notion of a Constitution, because if his claim wins out, then there are no longer any limits on what the chief executive can do, and we will be living under dictatorship instead of in a democracy. To George W. Bush, Dick Cheney, and Alberto Gonzalez, the Constitutional rights and liberties of Americans can be wiped away by a president’s executive decree – my dear friends and fellow Texans, a Bill of Rights that exists only at the sufferance of executive power is not a Bill of Rights at all, and an executive who claims such power is no longer the executor of Constitutional government, but has become by such actions an unconstitutional usurper. My words are provocative, because the situation is provocative when the U.S. president makes open war on the Bill of Rights that so many fearless American patriots sacrificed so much to preserve, protect and defend.
If Bush’s claim of the power to wiretap the telephone communications of Americans without warrants and to spy on peaceful American citizens is not blocked now, he will have prevailed in claiming that he can overrule our Bill of Rights by executive decree. There is no tomorrow on this one. There is no middle ground on this, no room for normal protocols. George W. Bush has declared that he has been wiretapping Americans without warrants, that he has the power to do so, and that he is going to continue to do so. He has declared that he is going to continue to spy on Americans’ freedom of speech and assembly. Bush has thrown down the gauntlet, and he has dared the people to pick it up.
A Texas Attorney General who understood that his job was to be the people’s lawyer would pick up that gauntlet. The Bill of Rights belongs just as much to the people of Texas as it does to anyone else in America. As Texas Attorney General I will fulfill my duty to preserve, protect, and defend the Constitution, by fighting on behalf of Texans with every means and resource at my disposal against any and all such anti-constitutional federal usurpations. For example, I would move swiftly into the courts as the lawyer for the people of Texas to challenge the Bushite government’s defiance of the Bill of Rights and have their actions declared unconstitutional. The current Texas Attorney General clearly will not challenge them, since he is a Bushite mouthpiece and will not bite the hand of the master who appointed him to statewide Texas public office. Probably no other Texas public official will challenge them either; but under the Texas Constitution it is the Attorney General, more than other state office-holder, whom the people of Texas most depend upon to fight for their Constitutional rights and liberties; and I will do so against all comers.
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*United States Supreme Court Justice Tom Clark in Berger v. New York (1967): "They found ‘conversation’ was within the Fourth Amendment’s protections, and that the use of electronic devices to capture it was a ‘search’ within the meaning of the Amendment, and we so hold. …The purpose of the probable cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed." (Justice Tom Clark was from Texas.) Justice Louis Brandeis, 77 years ago in Olmstead v. United States, 277 U.S. 438 (1928): "The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. …As means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping. …The makers of our Constitution…conferred, as against the government, the right to be left alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
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Posted by Lyn Wall at 09:14 AM | Permalink | Comments (9) | TrackBack
(I'll have a post later today on Jim Dean's visit to Houston last night, and the subsequent conference call with his brother Howard, but for now go read this exchange between Republicans, and then print and circulate -- especially among your GOP 'friends' -- the following ten reasons to oppose Proposition 2:)
On November 8, Texans will cast ballots on a number of constitutional amendments, among them one which defines marriage as being exclusively between a man and a woman. So when you go into the voting booth, please keep these mind:
1) Being gay is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.
2) Gay marriage will encourage people to be gay in the same way that hanging around tall people will make you tall.
3) Legalizing gay marriage will open the door to all kinds of outlandish, immoral behavior. As Senator John Cornyn has pointed out, people may even choose to marry their pets, because box turtles have legal standing and can sign a marriage contract.
4) Marriage is a fundamental institution and cannot be expected to be revised on the basis of societal whim. After all, women are still property, blacks still cannot marry whites, and divorce is still illegal.
5) Heterosexual marriage will be damaged if gay marriage were allowed; the sanctity of Britany Spears' 55-hour, alcohol-induced, impulsive marriage would be devastated.
6) Heterosexual marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn't be allowed to marry because our orphanages aren't full yet, and the world needs more children.
7) Obviously gay parents will raise gay children, since straight parents only raise straight children.
8) Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the citizens of an entire country. That's why there is only one religion in America.
9) Children can never succeed without a male and a female role model at home. That's why our nation has expressly forbidden single parents to raise children.
10) Gay marriage will alter the foundation of society for the worse; we could never adapt to new social mores. This is similar to the way our society has failed to adapt to automobiles, the service-sector economy, and longer life spans.
See how important this is? Vote against Proposition 2.
Posted by Perry Dorrell at 07:59 AM | Permalink | Comments (1) | TrackBack
From Think Progress:
ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980’s. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito’s view, voting to reaffirm Roe v. Wade. (Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991)
ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by “immuniz(ing) an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” (Bray v. Marriott Hotels, 1997)
ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito’s dissent was so restrictive that “few if any...cases would survive summary judgment.” (Nathanson v. Medical College of Pennsylvania, 1991)
ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) “guarantees most workers up to 12 weeks of unpaid leave to care for a loved one.” The 2003 Supreme Court ruling upholding FMLA (Nevada v. Hibbs, 2003) essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. (Chittister v. Department of Community and Economic Development, 2000)
ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. (Doe v. Groody, 2004)
ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito’s disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito’s dissent “guts the statutory standard” and “ignores our precedent.” In Ki Se Lee v. Ashcroft, the majority stated Alito’s opinion contradicted “well-recognized rules of statutory construction.” (Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004)
Posted by Perry Dorrell at 01:35 PM | Permalink | Comments (0) | TrackBack
The latest RWNM line is there is nothing in the indictment about the underlying crime -- revealing a covert operatives name in violation of the statute. What no one on the RWNM is mentioning is the Special Prosecutor has wide discretion to bring whatever charges he wants. It is obvious Fitzgerald is going after a simpler case because it is far easier to win.
A case is essentially a story. The simpler the narrative, the easier it is to get a conviction.
Let's look at both cases.
Perjury: essentially someone knowingly lied. To prove this case, the prosecutor must get the statement into evidence which is pretty easy. Then, he must prove he knew the statement was false. The prosecutor can do this through circumstantial evidence. However, he does not need to parade a large number of people in front of the jury. In addition, lying is a very easy concept for the jury to grasp.
Revealing a Covert Agents Identity: This is far more complicated. First, the prosecutor must prove the person was a covert agent. This immediately runs into issues of national security. Fitzgerald would have to get CIA documents into evidence. Then he would have to prove no one knew Plame was undercover. All Libby would have to produce is 1 credible person who claims they knew Plame was undercover and the case is gone.
In summation, Fitzgerald is using his discretion as a prosecutor to get the case e he knows he can win. This is entirely within his discretion. It also shows Fitzgerald is a bright guy. Why make it more complicated than it has to be?
Posted by Hale Stewart at 08:31 PM | Permalink | Comments (0) | TrackBack
... we feel it's our duty to report that many on the farther left have been agitating in recent days for the impeachment of President Bush, primarily on the grounds of deliberately lying to the American people about Iraq. But why stop there. Just today alone, Bush committed at least one "high crime" and two "misdemeanors," by our casual tally.
Let's review:
The act: President Bush said Wednesday that Harriet Miers' religious beliefs figured into her nomination to the Supreme Court as a top-ranking Democrat warned against any "wink and a nod" campaign for confirmation.
"People are interested to know why I picked Harriet Miers," Bush told reporters at the White House. "Part of Harriet Miers' life is her religion."
Misdemeanor No. 1: In using religion as a key basis for offering Miers a job, the president would appear to have violated the spirit, if not the letter, of the Civil Rights Act of 1964. According to the federal Equal Employment Opportunity Commission, Title VII of the law "prohibits employment discrimination based on race, color, religion, sex, or national origin."
Misdemeanor No. 2: More specifically, one could make the case that Bush's actions are also in violation of the Civil Service Reform Act of 1978, which specifically covers federal employees. According to the same EEOC primer: "The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability."
High crime: As you might expect, the "high crime" here is more serious, and is also the area where it's hardest to argue that the president did not cross the line. We are referring to Article VI, Clause 3 of the U.S. Constitution, which states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
Do you honestly believe that Harriet Miers -- with all her other qualifications exactly the same -- would have been nominated to the Supreme Court if she had been Jewish, or an atheist, or Muslim? Of course not, because the president and Karl Rove, or Andy Card, or whoever's really running things these days, knew that such a choice would not pass muster with the radical clerics who sit on "the board of directors" of Bushco.
A mid-level bureaucrat who treated a job vacancy in this manner would surely be fired. Shouldn't we hold the president of the United States to an even higher standard?
George W. Bush has an easy choice now. He can withdraw Miers' nomination. Or he can be impeached.
Posted by Perry Dorrell at 08:52 AM | Permalink | Comments (0) | TrackBack
There are a couple of sources reporting that rumors are swirling in Washington today about indictments, Karl Rove, and the Plame affair.
Yes, that's blog postings about rumors about indictments.
Still, is it possible that the news of Tom DeLay's legal woes just last week can be trumped this week by Karl Rove at last being frog-marched out of the White House?
Dare we dream?
Update: The Washington Post confirms that rumors are, indeed, swirling.
Update II (10/6, a.m.): Think Progress lists the 21 administration officials involved in Leakgate, and details their whereabouts, conversations, grand jury appearances, etc.
Update III (10/6, p.m.): NYT...
Stephen Gillers, a New York University law professor, said it was unusual for a witness to be called back to the grand jury four times and that the prosecutor's legally required warning to Rove before this next appearance is ''an ominous sign'' for the presidential adviser.''It suggest Fitzgerald has learned new information that is tightening the noose,'' Gillers said. ''It shows Fitzgerald now, perhaps after Miller's testimony, suspects Rove may be in some way implicated in the revelation of Plame's identity or that Fitzgerald is investigating various people for obstruction of justice, false statements or perjury. That is the menu of risk for Rove.''
Posted by Perry Dorrell at 03:50 PM | Permalink | Comments (1) | TrackBack
Harriet Miers, while co-manager of the Dallas law firm Locke Liddell and Sapp, was either in on a Ponzi scheme or was too stupid to know her firm was involved.
Greg Wythe, In the Pink Texas, and Burnt Orange Report all have the Houston Chronicle article from 2001 posted, along with their takes, of course.
Just when you thought the news couldn't get any worse for the Republicans... =)
Posted by Perry Dorrell at 05:39 PM | Permalink | Comments (1) | TrackBack
But every laywer knows that judges make law - it's their job. In fact, law students learn in the first semester that almost all tort law (governing accidental injuries), contract law and property law are made by judges. Legislatures did not create these rules; judges did, and they continue to do so when they revise the rules over time.
Indeed, one of the most fundamental doctrines of American law - the authority of courts to declare laws unconstitutional - is entirely made by judges. Nowhere does the text of the Constitution mention the power of judicial review, and it may fairly be debated whether the framers of the Constitution intended to create such a power.
For example, more than 60 years ago, the court considered an Oklahoma law that required the sterilization of anyone convicted twice of a felony involving moral turpitude (in that case, the crime was robbery). The court held that the law did not provide equal protection and added that forced sterilization was unconstitutional because the right to procreate is a fundamental aspect of the liberty protected by the Constitution. The justices were "making" the law.
Likewise, in the landmark decision of Brown v. Board of Education, the justices "made" the law in deciding that the equal protection clause prohibited racial segregation in schools and in overruling the infamous decision of Plessy v. Ferguson, which had held the opposite.
Edwin Chemerinsky was one of this article’s authors. For those of of you who are unfamiliar with him, he wrote a book called Constitutional Law. This is one of the textbooks law professors use to teach Con Law, and the textbook used in my Con Law course. I still have it and have used it more than I thought. Chemerinsky taught the Con Law section of my bar review course. He’s a Con Law expert. Basically all he does is read Constitutional law cases.
The whole argument against “activist judges” usually boils down to “we don’t agree with your decision.” Roe v Wade is a classic example, as is Griswald v. Connecticut which declared unconstitutional a Connecticut statute that prevented pharmacies from selling birth control. There is no specifically enumerated right in the Constitution to sell contraceptives. However, the court ruled (essentially) that everybody has autonomy over their reproductive rights.
What the right really wants is to hold judges in check when they attain an electoral victory that is unconstitutional. One of the arguments the right often uses is “the will of the people voted for this statute; therefore a judge should overturn it” – or something to that effect. What the right fails to realize is a majority of Americans can have an unconstitutional opinion. For example, the case Loving v. Virginia ruled unconstitutional a Virginia law forbidding interracial marriage. This Court decided this case in the mid-late 1960s. A Gallup poll of the South from 1965 discovered a majority of Southerners were for a legal prohibition on interracial marriage. According to the rights political thinking, this statute was fine because a majority of people supported it.
A great current example is gay marriage. There are strong Constitutional arguments against these statutes – one based on equal protection and one based on fundamental rights. I have no idea how a court would rule on these amendments or initiatives. But the point is a good Constitutional lawyer could make a solid argument they are unconstitutional and sway a judge on the issue. The right desperately wants to prevent this from happening, probably because they (hopefully) know at some level their initiatives are unconstitutional.
Chemerinsky is also dead-on accurate about common law being judge made. Tort and Contract law are essentially derived almost entirely from judicial opinions. For example, there is a string of tort cases dealing with proximate causation (a concept in tort law). Every law student reads these cases (remember the Palsgraff case?) because they are the root of that particular tort concept. And I have yet to hear any complaints about those concepts. They are now ingrained in negligence law. And no one is complaining about those concepts.
In other words, this whole activist judges concept is a great marketing phrase, but nothing more. It is not grounded in any understanding of legal history. It is nothing more than another right wing canard, disguised as valid theory.
Link
Posted by Hale Stewart at 12:25 PM | Permalink | Comments (0) | TrackBack