If Something is Wrong with a Law the Supreme Court will Stop it? Wrong!!

How many times have I heard that if something is wrong with a law of Congress the Supreme Court will stop it and that the Court is totally independent of Congress? Both views are decidedly incorrect. Supreme Court members may, in fact, agree that something is unconstitutional but they, by themselves, or as a body, are helpless in blocking it unless it is first challenged by someone else.

The Supreme Court may not interfere with any law unless someone is hurt or damaged by it, and is able and willing to challenge the law, over a long period of time, with the likelihood of a costly but doubtful conclusion. In other words, much that is unconstitutional goes unchallenged by the Court and, if not challenged, becomes past practice and later is often used to support new alterations to the Constitution.

The Court is only a partial check on constitutional law. Congress, the body charged with making all law, as per Article I, Section I, is to responsibly check itself with the Constitution. Members of Congress take an oath to do so. The voter does not take an oath, but is expected to have greater loyalty to the Constitution then to political party, to be familiar enough with the Constitution to spot indiscretions, and to remove those who would defile it through ignorance or intent.

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The U.S. Postal Service and the Constitution

If my inbox is any indication, a lot of Americans apparently believe that an amendment to the Constitution would be necessary to privatize the U.S. Postal Service. That is simply not true.

Article 1, Section 8 says that [The Congress shall have the power] to establish Post Offices and Post Roads. It does not say that the federal government shall have the exclusive power to deliver mail. Nor does it require that the mail be delivered by an agent of the federal government to every home in the country, six days a week.

In a 1996 Cato book, The Last Monopoly, James I. Campbell writes the following in a chapter on the history of postal monopoly law:

The U.S. Constitution, in 1789, authorized Congress to establish “Post Offices and post Roads” but, unlike the Articles of Confederation, did not explicitly establish an exclusive monopoly. The first substantive postal law, enacted in 1792, listed post roads to be established, reflecting the traditional concept of postal service as a long-distance transport. It authorized the Postmaster General to enter into contracts for the carriage of “letters, newspapers, and packets” but limited the postal monopoly to “letter or letters, packet or packets, other than newspapers.”

According to Campbell, the Post Office “first began delivery of mail to a small portion of the U.S. population” in 1863:

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Ninth Circuit OKs Feds Use of Cellphones as Roving Bugs

The Ninth Circuit of Appeals ruled on July 20 that agents of the federal government may use a cellphone as a microphone and record the conversations overheard even when the phone itself is not being used otherwise.

This frightening bit of judicial lawmaking came as part of the decision in the case of the United States v. Oliva, 2012 WL 2948542 (9thCir. July 20, 2012).

For a bit of background, Oliva was convicted by a jury of drug-related crimes involving the distribution of methamphetmaine, cocaine, and marijuana. He appealed a decision by a district court denying his motion to suppress evidence obtained from a series of electronic surveillance orders authorizing interception of communications over cellular phones associated with him and his alleged co-conspirators.

Oliva argued that the orders authorizing these wiretaps were not standard intercept orders and did not meet the “specificity” requirement of the applicable federal law.

In its decision, the Ninth Circuit has upheld the lower court’s ruling, essentially allowing the federal government to convert cellphones into “roving bugs” so long as the government makes it clear that it will be using the target’s cellphone in that manner. Notice, the Ninth Circuit — a court created under the authority granted to Congress in Article III of the Constitution — did not throw out the matter as a violation of the defendant’s Fourth Amendment right against “unreasonable searches and seizures.” Instead, it simply informed  the government that it needs to get permission before doing so.

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