Equally as loathsome when actor and malcontent Sean Penn criticizes America while praising the Arab Spring, Supreme Court Justice Ruth Bader Ginsburg disparaging the US Constitution rivals treason.

Ginsburg’s ACLU convictions shadow her in old age. Conjoined in mindset with Barack Obama, both believe the Constitution is an outdated allegory, no longer sufficient as a guiding vehicle to the norms of contemporary society.

Like a vulture awaiting a carcass to further decompose before gorging its remains, Ginsburg shared her ill-timed and progressive views on social equality in the appropriately moldering venue of Egypt last week.

A proponent of foreign charters and treaties to better liberate the world, Ginsburg on Christian Arabic Alhayat television, said, “I would not look at the US Constitution if I were drafting a Constitution in 2012, instead suggesting a more modern version, namely South Africa’s, in laying more fundamental human rights and an independent judiciary.

In Cairo on the one-year anniversary of the Friday of Rage, marking the uprising leading to the ouster of Hosni Mubarak, Ginsburg called it “a very inspiring time, that you have overthrown a dictator, and that you are striving to achieve a genuine democracy. Americans are hoping that this transition will work.”

In the streets below her hotel overlooking Tahrir Square, Islamists and liberal secular-leaning protesters were seen divided on how to achieve that genuine democracy.

Also among the activists on the Square, where in 2011, three world newswomen on assignment were sexually assaulted and molested, including CBS News’ Lara Logan who was raped, were members of the rancorous Muslim Brotherhood, unsullied from a 50-seat parliamentary election victory, now in the driver’s seat of the country’s conscience.

While Ginsburg espoused “listening and learning from others,” referencing amended protocols from the European Convention on Human Rights, CBC Egypt was simultaneously broadcasting the carnage and subsequent rioting with police in the aftermath of a Port Said soccer match where 74 people were trampled to death.

Ginsburg’s sojourn was tainted as 19 Americans; some from US funded pro-democracy organizations were accused of inferring in the country’s internal politics, and are now being held hostage by Egypt’s military-appointed government.

Choosing not to contradict the objective of her visit, the normally outspoken Ginsburg had no comment on the wave of crime and internal turmoil in a region where the anti-Western Muslim Brotherhood calls the shots following Obama’s call one year ago for Mubarak to step down.

Since Ginsburg won’t use the US Constitution as an archetype model for Egypt, she can’t preach to the new choir inserted there
either; ones with as little regard for American ideals as Ginsburg herself.

…and there was much (UNANIMOUS!) rejoicing:

Justices say GPS tracker violated privacy rights:

The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property.  That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Long story short, the government got a warrant to put a GPS tracker on Antoine Jones’ car, within the District of Columbia, within 10 days of the issuance of the warrant. The government, however, slapped the tracker on the car on day 11 (eyeroll), while the car was in Maryland (DUH); Jones eventually got charged with conspiracy to possess and distribute seriously irresponsible amounts of cocaine, in violation of federal law. Jones ended up getting life in prison, but through the spin and twirl of the appellate process, ended up with his case before the Supreme Court–United States v. Jones.

The result?  Short version: Yes, sticking a tracking device on a piece of private property is a search. /whacks police on nose with newspaper

The majority’s opinion (the court was unanimous as to the result, but split on the reasoning) fell into line with the earlier, “protected places” approach to resolving 4th Amendment controversies, instead of the more modern “reasonable expectation of privacy” doctrine that was introduced in Katz v. United States, 389 U.S. 347 (1967).

Huh?

Before Katz, the Supreme Court saw the 4th Amendment as protecting certain places–namely, private property owned by the person being searched. Their decisions didn’t touch on “privacy”; the approach was based on the idea that the right to be “secure in [your] persons, houses, papers, and effects” attaches to a property interest, a violation of which is analogous to common law trespass. In 1967, the Court decided Katz, which gives us this idea that the 4th Amendment applies to any government search or seizure that interferes with a person’s “reasonable expectation of privacy,” even if there was no interference with that person’s property. The Court famously stated, “the Fourth Amendment protects people, not places.”

In the opinion, Justice Scalia brought the Court back to its common law roots:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’” with regard to search and seizure.  Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886)).  In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:

“[O]ur law holds the property of every man so sacred,
that no man can set his foot upon his neighbour’s close
without his leave; if he does he is a trespasser, though
he does no damage at all; if he will tread upon his
neighbour’s ground, he must justify it by law.” Entick,
supra, at 817.

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

Bravo, sir.

Notice what Scalia did–he went back to a British case* that was leading precedent at the time of the drafting and adoption of the constitution, and used an original intent argument as a basis for his opinion.

I love this decision. I love that the Court went back to its archaic and unsexy roots.  I appreciate their willingness to not travel down the “reasonable expectation” path when they didn’t need to. Staying true to form, I agree with Justice Scalia completely.  The outrage and the controversy lies in the fact that the Government went outside their warrant, trespassed on this man’s private property, tracked his movements, and then had the audacity to argue that this wasn’t a search.

Trespassed.
On.
Private.
Property.

The majority rightfully accuses the concurrence with attempting to make Katz the exclusive test for situations like these; after all, Katz is important, but do we really need to go down that road? It’s such a simple concept-trespass. A violation of a right I fear the legal system has brushed aside in favor of sexier concepts like privacy. What happened to Jones was classic trespassory search–more than enough to cook the cops in their own stew given the application of a little classical jurisprudence. It doesn’t hold that because physical intrusion isn’t necessary to classify the intrusion as a search, we should abandon those more formal (and dare I say, sacred) protections provided to private property.

For me, at least, the common law protecting private property is the root of all privacy law. Why can’t the government traipse onto my yard and into my house?  Because it’s mine.  It’s my home.  It’s my space.  Not yours, Government.  Why can’t the government intrude upon my privacy?  Same logic, different bubble.  There are definite privacy concerns when it comes to GPS monitoring, but there’s no reason to skip over the fundamental violation–in this case, trespassing on a private car–when that fundamental violation is staring you directly in the face.

You can read the opinion here.

Photo credit to ICanHasCheezburger.com.
Originally posted at Beyond Clause 8.

I love the law.

I am, above most things, an academic. I love almost everything about what I’ve spent every day of the last eight years doing; since entering law school, my appreciation for philosophy and the rule of law has only deepened, in spite of all the late nights, liberal professors, and Red Bull-induced freakouts that occasionally end with me sleeping standing up in an elevator. (Happened. Two nights ago. Wouldn’t lie.)

Along with that appreciation has come a deep respect for, and a tireless defense of, law as a profession. The lawyer jokes are funny until they’re not jokes anymore; it’s incredibly easy to joke about the ethics, business practices, and overall brainpower of lawyers because (get ready for a dramatic declaration) lawyers are just about the easiest targets out there. Why? Because you don’t get it. I should say, you don’t get all of it; what people see when they’re exposed to law and the courts is a tiny, tiny, miniscule–nay, wee–fraction of what actually happens when a controversy becomes a case and is heard before a judge. You’ve not seen the work ad infinitum that goes in to researching and presenting a case.

I believe this is why so many people applauded Newt’s comments on reforming the judiciary during Thursday night’s debate, and why my head is now pounding through a perpetual caffeine overdose.

There I was, fresh out of my income tax final and looking for something to kill. (Only not. But…kind of. It was hard.) I parked myself in the library and settled in for a solid fifteen minutes of procrastination before snuggling up with my crim pro text and a man by the name of Miranda. I started flipping through my timeline and came across a clip of Newt Gingrich pontificating on what he believes is an overstepping in perpetuity of the judiciary. Check out the clip, then read on.

Done?

This is pandering in its worst form, especially his comment at the end about law schools fostering in their students a belief that they can dictate the law and lord it over the rest of the American people. I won’t call him a liar on this one (it depends entirely on the professor and the student), but I will call a spade a spade with regards to his debate strategy.

This segment sent me into a slow burn, and here’s why: if we start holding courts accountable to Congress for decisions in controversial cases, who, then, are we giving final authority over those controversial decisions? Congress? The same Congress who passed eighty five million pages of garbage and called it “recovery”? The same Congress who danced around a budget for hundreds of days? The same Congress who confirmed Justices Sotomayor, Kagan, Ginsburg, Stevens, Breyer, Marshall, Harlan, White, and Souter to the Court? HMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM?

We have Congress for a reason. We have courts for a reason. Some courts are more reliable than others; the 9th Circuit, for example, is notorious for being overturned on cert. Even assuming, arguendo, that Congressional oversight would fix all of our problems, would it be worth it? I think that it would not. In his response, Newt makes much of Dred Scott, Elk Grove (via the 9th Circuit) and other cases that, for one reason or another, are not looked upon with particularly high favor. Those are the bad cases, the cases that make you cringe–whether it be from the effect on the people, or from the reasoning that went into the holding. The thing about cases like Dred Scott, though, is that they were overturned. The Court looked at what happened, and went in a different direction. This is how it’s supposed to work.

Imagine for a moment a world in which appointed judges were required to bow and scrape before elected politicians every time a “controversial” (whatever the hell that means) decision came down. Can you imagine having to sit before the next Rick Santorum and explain why you ruled consistently with relevant provisions of Casey v. Planned Parenthood? Or Griswold? I’d rather clean a toilet with my own toothbrush than subject myself to the penumbras that would surely emanate from that “hearing.” Not to mention the effect the prospect of a hearing would have on the deliberation process; especially at the appellate level, judges and clerks should not have to worry any more than they already do about who their decision might send into a pearl-clutching fit of the vapors.

It’s true: the courts do overstep. Judges legislate from the bench, that that makes for results that are beyond frustrating. However, our system of checks and balances makes it possible to fix what even the courts manage to screw up; the legislature has the power to write and rewrite legislation, and the executive has the power to check the overchecking of the legislature via veto. To rip the power of interpretation away from the courts and settle it into the laps of career politicians would be beyond reckless.

I’m almost a lawyer; when I finally get to where I’m going, it will be my job to read the law, interpret it (which includes a historical analysis, so I guess we’re all historians now, aren’t we Mr. Gingrich?), and apply its principles to the hand I’m dealt.

It will not be my job to “read the American people,” and it will most certainly not be my job to pervert the law to fit the standards of a man whose job it is to put votes before principle, and acceptance in the soundbite culture before the rule of law.

Originally published over at The College Conservative

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On today’s edition of Coffee and Markets, Brad Jackson and Ben Domenech are joined by Ted Cruz to discuss his race for the US Senate, his ideas for entitlement reform, and how he would fix the economy.

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Download audio here

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On today’s edition of Coffee and Markets, Brad Jackson and Ben Domenech are joined by Ted Cruz to discuss his race for the US Senate, his ideas for entitlement reform, and how he would fix the economy.

We’re brought to you as always by BigGovernment and Stephen Clouse and Associates. If you’d like to email us, you can do so at coffee[at]newledger.com. We hope you enjoy the show.

Related Links:

A Test for the Tea Party in Texas Senate Race
Ted Cruz: on a mission to save the country
Coffee and Markets Archive: Ted Cruz on His Race for the Senate in Texas
TedCruz.org

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Update 1/7/11 6:00pm. Two San Diego area Congressmen, Rep. Brian Bilbray (R-Carlsbad) and Rep. Duncan Hunter (R-El Cajon) sent letters to US AG Holder & Defense Secretary Robert Gates in defense of the memorial.

A commanding and dramatic site. A testament to our War Veterans who have given their lives to Advance Freedom and protect our nation. Now in danger from leftist and liberal organizations like the ACLU, Americans United for Separation of Church and State and our own court system.

This time an outrage from the liberal 9th Circuit Court of Appeals, specifically Justice Margaret McKeown who penned the 50 page decision this week, stating the 43 foot tall Mount Soledad Cross which sits on federal land in a park just outside the city of San Diego violates the “Establishment Clause” of the Constitution, noted below:

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.

In reaching the decision the 9th Circuit overturned a previous ruling in 2008 by Justice Larry Burns who ruled in a previous lawsuit by Jewish veterans the cross is part of a memorial built for and in memorial of all veterans, not just those of any ethnicity or religion. The Cross now belongs to the Federal Government, specifically the Defense Department, the entity which now must intervene to save the cross from possible demolition. Not only is there a cross, but also 2,700 plaques dedicated to war veterans both living and deceased in 6 concentric rings.

The crux of McKeown’s decision states the Cross

“primarily conveys a message of government endorsement of religion that violates the Establishment Clause. This result does not mean that the memorial could not be modified to pass constitutional muster, nor does it mean that no cross can be part of this veterans’ memorial.”

Our national heritage seems to be in the crosshairs of liberal organizations and judges who are chipping away bit by bit at the ideals and religion this country was founded upon.

This Cross controversy has been in the court system for over 10 years, SCOTUS Justice Kennedy intervened in 2006 ruling for a stay after Congressional legislation and the voters of San Diego made their feelings known positively after the ACLU filed suit on behalf of an atheist who was apparently “offended” by the cross. If the “offendee” was “offended” this diarist sees no need for that “offendee” to attempt to limit access to the thousands of visitors who see the cross as a Beacon of Light and comfort for our veterans, those who made the ultimate sacrifice and their families. After all, it just sits there. There’s no coercion of any kind.

Gina Coburn, ironically a spokesperson in the San Diego attorney’s office and once a plaintiff claims the cross will have to be removed unless the 9th Circuit reverses their decision or SCOTUS intervenes.

I had the pleasure of speaking with Atty. Kelly Shackelford of Liberty Institute whose organization is representing the American Legion and has filed a brief asking the court to protect the monument. Liberty Institute also represents over 4 million veterans in their fight to preserve the Mojave Desert Veterans Memorial which also had a cross, pictured below, which was stolen back in May after SCOTUS “saved” it. This is akin to desecrating people’s graves.

Liberty Institute will be appealing to the Obama Administration and the US Justice Dept to intervene to save the Soledad cross. Their press release is here.

It seems we have an attempt at “religious cleansing” here, my folks. I wonder what the reaction would be had this been a mosque. Attorney Shackelford states:

“The Ninth Circuit’s opinion almost completely disregards the U.S. Supreme Court’s decision in Salazar v. Buono, in which the Court said that the Mojave Desert Veterans Memorial should stay,” said Kelly Shackelford, president/CEO of Liberty Institute. “This ruling is a slap in the face to our nation’s veterans, and we hope that the Justice Department will ask the U.S. Supreme Court to set the matter straight.” [snip]This is part of a national trend to remove crosses on federal land, regardless of whether the cross is part of something as sacred as a veterans memorial.”

We’ll have to see how the Justice Dept. and Obama handle this. After all, Obama was “called to task” by members of Congress in this letter for “misquoting history” in his speech in Indonesia last December. In the speech he called our national motto E pluribus unum when in reality it is In God We Trust. A deliberate misquote, an error or no teleprompter in site?

The letter is signed by 42 Congressmen.

As our Veterans Memorial Crosses seem to be toppling like dominoes, what is next to be targeted? The site below?

Crossposted at Conservative Outlooks

Crossposted at Procinct.net

The following is a submitted assignment from a class I am taking on the United States Constitution which I thought this audience might appreciate:

The First Amendment to the Constitution of the United States reads as follows:

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 (“The Constitution of the United States,” Amendment 5).

Arguably, and to various degrees, each clause of this amendment has been violated at different points in American history. Freedom of speech is now relegated to approved “zones (Hanna, 2009).” The press has been highly regulated at various points, most notably by the crippled but remerging “fairness doctrine (Almond, 2009).” And groups wishing to assemble to petition their government are required to file for permits which may be rejected arbitrarily (Hanna, 2009).

Perhaps no clause has been more abused and misinterpreted than the “establishment clause,” which restricts Congress from creating a church or restricting the free exercise of religion. Early American history demonstrates a common understanding of this clause which was eventually rejected by the Supreme Court in its landmark Engel v. Vitale decision in 1962, which instigated a shift in the definition of “establishment” from enforcement of a particular religion to the mere mention of anything religious .

Before considering Engel v. Vitale, it is appropriate to consider the context in which the First Amendment along with the whole of the Constitution was written, who wrote it, and what they had to say about it. There may be no better proxy for this investigation than the US Congress, as assembled in 1854 to address objections brought by select plaintiffs against “public religious expressions by legislative chaplains paid for by State budgets (Wallbuilders.org, 2009).” The plaintiffs argued that such religious expressions, funded by government and conducted in a government venue, violated the First Amendment of the Constitution. The resulting House report on the issue found the alleged violation contrived, citing the establishment and perpetuation of legislative chaplains under the tenure of the First Congress, which included many of the very men who framed the First Amendment.

On the 1^st day of May [1789], Washington’s first speech was read