The Second Circuit Court of Appeals recently rejected a challenge to the sections of the National Defense Authorization Act (NDAA) that could allow for indefinite military detention of those who are suspected of substantially supporting terrorism.Details
by Jon Roland, Constitution Society
The Boston bombing suspect Dzhokhar Tsarnaev has been charged with multiple federal offenses, but none of them are authorized by the U.S. Constitution for offenses committed on state territory, as the acts in Boston were. If the federal courts were constitutionally compliant, they would be compelled to dismiss them all, and let the State of Massachusetts prosecute him under its laws.
The following is a summary of the main federal charges:
- Use of a weapon of mass destruction resulting in death and conspiracy.
- Bombing of a place of public use resulting in death and conspiracy.
- Malicious destruction of property resulting in death and conspiracy.
- Use of a firearm during and in relation to a crime of violence.
- Use of a firearm during and in relation to a crime of violence causing death.
- Carjacking resulting in serious bodily injury.
- Interference with commerce by threats or violence.
- Aiding and abetting.
Contrast this with the following, taken from the second of the unanimous Kentucky Resolutions of 1798, written by Thomas Jefferson, summarizing original understanding of the U.S. Constitution:Details
The Second Circuit has permanently vacated the injunction issued by the District Court against NDAA 2012 indefinite detention powers. The case has been remanded to District Court Judge Kathryn Forrest. who originally issued the injunction.
In layman’s terms, Forrest put a stop to indefinite detention, and the Second Circuit overturned that. It also permanently prohibited Forrest from attempting to do so again, ordering her to proceed with the case consistent with their opinion.
NDAA “indefinite detention” powers are alive and well.
The opinion appears to be based only on lack of standing — based on the Clapper case decided by the Supreme Court:
“In sum, Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens. While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have not established standing on this record. We VACATE the permanent injunction and REMAND for further proceedings consistent with this opinion.” P. 60
The Tenth Amendment Center, along with a broad coalition of organizations and individuals, filed an amicus brief on behalf of the defendants. It was cited at p. 4 and note 3 in the District Court’s opinion:
As one group of amici has noted, “[r]arely has a short statute been subject to more radically different interpretations than Section 1021.”
The only other reference to an amicus brief was at p. 40, in note 137 — Center for National Security Studies.
REVIEWING THE “LAW” IN QUESTIONDetails
The Supreme Court just released its opinion on DOMA, and Prop 8. The justices showed some rare wisdom here, and even applied the Constitution in ways I never expected them to. I suppose, just when you are certain of the utter uselessness of an organization, they can perform one righteous act to make a liar out of you.
First let me explain what the Constitutional position of the federal government should be on marriage.
It’s that simple. Marriage is not mentioned once in the Constitution. It is not related to an enumerated power, and as a religious institution, it is arguably forbidden for the feds to pass laws concerning it under the First Amendment.
But, I will allow one disclaimer to this position: the full faith and credit clause in Article4:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
Both gay rights activists and traditional marriage protectionists rely upon this clause to make the claim that America must either embrace or ban the practice of gay marriage across the nation. This fight comes down to contract rights. Gay marriage proponents ask: if marriage is a contract drawn up in one state, why is another state not bound to enforce it? This is the same argument slave owners used to force the northern states to return runaway slaves during the ante-bellum American period.Details
“No we don’t trust the legislators, No we don’t trust our government in Florida or DC either, to do the right thing,” said Adora Nweze, president of the Florida State Conference of NAACP. The group started a mobilization process in response to the Supreme Court ruling that found section 4 of the Voting Rights Act to be unconstitutional. The plan includes educating voters and contacting law makers who will now control what ever new voting rules are created.–WWSB My Suncoast news story
When I heard this story on the radio my first thought was , “A light went on at the NAACP!”
This statement by Florida NAACP president Adora Nweze could have been made by any Tenther or liberty person discussing the proper role of government and the lost federalism of the ratifiers.
Ms. Nweze went on.
” the Supreme Court ruling is “a step back,.. We will require we roll up our sleeves and get busy making sure that our governor, our state legislators and our congresspersons understand the role each of them has in ensuring that this decision does not throw us back to the 60s.”
No rational person feels anything but repugnance towards Jim Crow laws. I also doubt that a return to those days has any chance of occurring. Tenthers and liberty people would be among the first to join against such laws and move against the state if even the shadow of Jim Crow hinted of a comeback, state sanctioned or otherwise.
This SCOTUS decision is not in fact a step back, but a step forward in what must be a long term reclamation of federalism–keeping the federal government and its courts restrained to their enumerated powers; leaving to the states the vast residuary mass of infinite powers reserved to them.Details
In a move that would make Joseph Story and John Marshall rise from their graves and offer him high-fives, 10th Circuit Judge David Nuffer made himself the sole arbiter of federal and state powers, ruling last Friday that federal park rangers’ authority supersedes that of the State of Utah in matters concerning local law.
Gov. Gary Herbert signed HB155, on April 3. The new law prohibits federal Land Management officers from acting as agents of state and local law by “limiting the authority of specified federal employees to exercise law enforcement authority within Utah.” The bill came in response to officers of the Forestry Service taking it upon themselves to administer local traffic laws, making such unauthorized actions class-B misdemeanors; punishable by a $1,000 fine and six months in jail.
“We don’t want Utah citizens going before a federal magistrate for a speeding ticket,” said Utah AG Swallow, in the AG’s press release on May 13. “Federal officers should be enforcing federal laws and state and local officers should be enforcing state and local laws. We are concerned about the federal government once again encroaching on states rights and we will vigorously defend the constitutionality of HB 155.” [Emphasis added.]
Federal attorneys promptly sued, and on May 13th, Nuffer granted a temporary injunction, stopping the law from taking effect. Last Friday’s ruling extends the injunction until the issue is settled at trial.Details
Though many living in New England today might be loathe to admit it, there is a long history of nullification being used in the region to defy unconstitutional federal edicts. This week, the town of Sedgwick, Maine voted to carry on that proud tradition by nullifying certain federal agricultural regulations.
They did so through what might be the most legitimate form of democratic expression left in America: the New England town meeting. (Which have been held in the Sedgwick town hall since 1794.)
“Sedgwick citizens…to produce, process, sell, purchase, and consume local foods of their choosing,”
but declares thatDetails
U.S. Supreme Court Justice Stephen Breyer demonstrated some typically muddled progressive reasoning on Fox News Sunday, contending the founders would have supported modern gun control laws and sided with the dissenters in the 2008 case D.C. v. Heller.
In a nutshell, Breyer says the framers (James Madison in particular) put the Second Amendment in the Constitution, but they didn’t really mean it.
He argues that the Second Amendment was included simply to ensure ratification of the Constitution, but that the framers didn’t really philosophically believe in protecting the individual right to bear arms.
He buoys his argument by claiming “most historians” agree.
“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”
As if Breyer really has any idea what “most” historians think.
But I digress.
In fact, Madison wrote in Federalist 46 that an armed citizenry provides a check against overreaching government. And any fair reading of the founders reveals a fear of centralized power and that they advocated for an armed citizenry to provide balance and protect liberty.Details
Possibly the biggest story of the day, even though it’s barely getting coverage: A federal judge ruled Thursday that parts of a lawsuit by 20 states seeking to void the Obama administration’s health care overhaul can go to trial, saying he wants hear additional arguments from both sides over whether the law is unconstitutional. In a…Details
As a supporter of laws like SB1070 and other state and local efforts to curb illegal immigration I am disturbed by the trend that federal courts are now weeding through state laws and deciding if they are constitutional or not. Whether or not you support state efforts to curb illegal immigration you have to agree that the courts have lost all prudence in this matter. They now want to chop through state laws and decide what is permissible for them to have and not have.
Pardon me but don’t the courts only have one function and that is to weigh the facts and punish those who break the law. The way a court system works is that the government brings the accused before it where they weigh the facts presented by the state in order to decide if the accused broke the law. They then meet out punishment based on what the law says.
Notice I said they don’t decide punishment because that has already been decided by the law. In fact, everything the court does is decided by law. The courts have this power because of the constitution and the same constitution gives them the power to judge the law as well as the facts. This is stated in Article III section 2 of the constitution.Details