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Tag Archives: courts
Posted: January 6, 2017 at 10:47 pm
In a racist ruling that primarily functioned as a way to disarm black residents while protecting white Southern paramilitary groups, the Supreme Court held that the Second Amendment applied only to the federal government. Chief Justice Morrison Waite wrote for the majority:
The most frequently-cited Second Amendment ruling in U.S. history has been United States v. Miller, a serious but challenging attempt to define the Second Amendment’s right to bear arms on the basis of how well it serves the Second Amendment’s well-regulated-militia rationale. As Justice James Clark McReynolds wrote for the majority:
In a 5-4 ruling, the U.S. Supreme Court decidedfor the first time in U.S. historyto strike down a law on Second Amendment grounds. Justice Scalia wrote for the narrow majority:
The first salient feature of the operative clause is that it codifies a ‘right of the people.’ The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times, in the First Amendments Assembly-and-Petition Clause and in the Fourth Amendments Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’). All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body …
We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendments text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Courts decisional process than on the reasoning in the opinion itself …
Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Courts announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations …
The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choicethe choice made by the Framers themselves. The Court 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, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Courts opinion, I could not possibly conclude that the Framers made such a choice.
Posted: November 2, 2015 at 5:48 am
In a Nutshell
The courts have been largely responsible for protecting and extending this right of speech. Over the past two centuries they have explored the protection owed all sorts of expression, including sedition, “fighting words,” “dangerous” speech, and obscenity, and all sorts of persons, including political radicals, Ku Klux Klansmen, and even students. But in doing so, the courts have also operated under the premise that a portion of the British legacy was correct: the right to speech is not absolute. As a result, the legal history of the First Amendment could be summarized as a balancing actan attempt to protect and extend free speech guarantees but also define the limits of this right in a manner consistent with the equally compelling rights of the community.
Freedom of speech would be easy if words did not have power. Guaranteeing people the right to say and print whatever they wanted would be easy if we believed that words had no real effect.
But Americans tend to believe that words do have powerthat they can anger and inspire, cause people to rise up and act out. Americans celebrate speakers like James Otis, Abraham Lincoln, and Martin Luther King, Jr., whose words inspired people to fight for independence, advance the American experiment in republican government, and dream of a more just society.
Freedom of speech would be easy if all people could be trusted to be rational discerners of truthif everyone could be trusted to sort out good ideas from bad ideas and recognize the ideologies and policies that were truly aimed at the best interests of the community.
But history has proven that people do not always recognize and reject bad ideas. The past is filled with examples of peoples and nations swayed by destructive ideas.
Freedom of speech would be easy if we just said that the right was absolute, that there were no limitations on what a person could say or print and no legal consequences for any expression no matter how false, slanderous, libelous, or obscene.
But as a nation, we have always held that there are limits to the right of speech, that certain forms of expression are not protected by the First Amendment.
The bottom line: freedom of speech is not easy. Words are powerful, which means that they can be dangerous. Humans are fallible, which means that they can make bad choices. And the right of speech is not absolute, which means that the boundaries of protected speech have to be constantly assessed.
All of these facts complicate America’s commitment to free speech, but they also make this commitment courageous. In addition, they leave the legal system with a difficult challenge. On the one hand, the courts are entrusted with protecting this right to free expression, which is so central to our national experience. On the other hand, they are charged with identifying the often blurry edges of this freedom.
Read on, and see if the courts have appropriately met both of these responsibilities.
Read the rest here:
Free Speech – Shmoop
Posted: August 13, 2015 at 3:53 am
By John Paul Stevens April 11, 2014
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.
The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.
The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a well regulated Militia.
When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.
Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans Second Amendment rights. Five years after his retirement, during a 1991 appearance on The MacNeil/Lehrer NewsHour, Burger himself remarked that the Second Amendment has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.
In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilians right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters elected representatives, not by federal judges.
In my dissent in the McDonald case, I pointed out that the courts decision was unique in the extent to which the court had exacted a heavy toll in terms of state sovereignty. . . . Even apart from the States long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Courts meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.
Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.
Posted: April 6, 2015 at 3:50 am
By Editorial Board April 5 at 6:53 PM
IN THE Supreme Courts landmark 2010 case Citizens United v. Federal Election Commission , the court declared that corporate independent political expenditures are protected free speech under the First Amendment and cannot be constrained. The court wrestled with the possibility that unlimited spending might have a corrupting influence on politics, but in the end it decided that free speech was the overriding goal and that as long as the expenditures were independent of candidates, and transparent, they would not increase corruption. The campaign cycles since then have been increasingly awash in this spending, much of it going to super PACs.
Now comes a disturbing set of facts that call into question the courts logic and conclusions about corruption. The April 1 indictment of Sen. Robert Menendez (D-N.J.) on bribery charges alleges a chronology that should worry everyone who cares about integrity in national politics. According to the indictment, a wealthy Florida ophthalmologist, Salomon Melgen, who was seeking Mr. Menendezs support on matters before the U.S. government, wrote two checks for $300,000 each in 2012 to the Senate Majority PAC, a super PAC devoted to supporting the election of Senate Democrats.
The donations were earmarked for use in the senators state of New Jersey. The senator was the only Democrat running for the Senate then in New Jersey. The doctor handed over one of the checks to a close friend of Mr. Menendez at the senators annual fundraiser. Is this what the court envisioned as independent?
The super PAC has said it acted within the law. It will be up to a jury to decide whether the doctor and the senator engaged in corruption. But the facts asserted in the indictment are sufficient to call into question the courts underlying thinking in Citizens United. The court declared that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. The court added that there is only scant evidence that independent expenditures even ingratiate.
In this case, the money may have earned the doctor more than just gratitude. The indictment describes a flurry of e-mails, calls and requests for meetings by the senator on behalf of the Florida doctor. The senator aimed his efforts at cabinet members, regulators and fellow senators. There is no evidence of a direct quid pro quo, but the timing is suspicious. For example, on June 1, 2012, the doctor issued a $300,000 check, through his company, to the super PAC, earmarked for New Jersey politicking. On June 7, the senator met with the acting administrator of the U.S. Centers for Medicare and Medicaid Services to advocate for a resolution of a Medicare billing dispute involving the doctor to the tune of nearly $9 million. Just coincidence?
Whats at stake here is more than just one case. The Supreme Court has created an environment pregnant with possibility for corruption. The principles of independent expenditure are being routinely subverted. The reality of corrupt politics money for favors is growing more evident by the day.
Continue reading 10 minutes left
The rest is here:
Editorial: Political speech or corruption?
Posted: March 31, 2015 at 10:49 pm
When the government places a location monitor on you or your stuff, it could be violating the Fourth Amendment.
If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a searchand is therefore protected by the Fourth Amendment.
The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that states high court. The Courts short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.
It doesnt matter what the context is, and it doesnt matter whether its a car or a person. Putting that tracking device on a car or a person is a search, said Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation (EFF).
In this case, that context was punishment. Grady was twice convicted as a sex offender. In 2013, North Carolina ordered that, as a recidivist, he had to wear a GPS monitor at all times so that his location could be monitored. He challenged the court, saying that the tracking device qualified as an unreasonable search.
North Carolinas highest court at first ruled that the tracker was no search at all. Its that decision that the Supreme Court took aim at today, quoting the states rationale and snarking:
The only theory we discern  is that the States system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Courts precedents.
Then it lists a series of Supreme Court precedents.
And there are a few, as the Court has considered the Fourth Amendment quite a bit recently. In 2012, it ruled that placing a GPS tracker on a suspects car, without a warrant, counted as an unreasonable search. The following year, it said that using drug-sniffing dogs around a suspects front porchwithout a warrant and without their consentwas also unreasonable, as it trespassed onto a persons property to gain information about them.
Both of those cases involved suspects, but the ruling Monday made clear that it extends to those convicted of crimes, too.
See the original post here:
U.S. Supreme Court: GPS Trackers Are a Form of Search and Seizure
Posted: March 2, 2015 at 6:40 pm
March 2, 2015 – 18:16 AMT
PanARMENIAN.Net – The President of Azerbaijan, Ilham Aliyev, is showing signs of a frantic despotism. Journalists, bloggers, lawyers, human rights activists and others who speak out for individual liberty are arbitrarily being swept up in a wave of arrests and detentions, an article on the Washington Post says.
Aliyev, suffering a decline in the oil revenue that has propped up his regime for years, seems to be striking out at anyone who opposes him.
One of Aliyevs favorite tools for silencing people is pretrial detention, the article notes. Azeri law states that it is to be used only in limited cases, and Azerbaijans criminal procedure code put this power in the hands of the courts, not prosecutors, more than a decade ago. In practice, though, the courts have become servants of the prosecution. The European Court for Human Rights noted in a case last year that Azeri courts have frequently endorsed prosecution requests for detention automatically.
Leyla Yunus, a prominent human rights activist, has been in pretrial detention since July 30 on arbitrary and trumped-up charges of treason and tax evasion. She is suffering from a liver condition and diabetes. On Feb 18, an appeals court dismissed her appeal and gave her another five months in pretrial detention, at the end of which she will have been behind bars for nearly a year without trial. Her husband, Arif Yunus, a historian who suffers from cardiovascular disease, was detained on Aug 5. His appeal was dismissed Feb 23, and he, too, was given another five months in pretrial detention.
Meanwhile, the campaign against critical journalists continues. The investigative journalist Khadija Ismayilova, who described her situation in a letter from prison that ran as a recent Post op-ed, remains behind bars in pretrial detention. A closed-door trial was held Feb 23, three days after her letter appeared, and she was found guilty of criminal libel and fined. The libel charge stemmed from accusations made in 2014 by a man who claimed she defamed him on Facebook, which she denied. In the twisted, Orwellian nature of the Azeri justice system, she was first arrested in December on a charge of inciting a former colleague to attempt suicide and since has been slapped with new charges, including embezzlement, tax evasion, illegal entrepreneurship and abuse of power.
Aliyev seems particularly uncomfortable with the work of the Azerbaijani service of Radio Free Europe/Radio Liberty, to which Ismayilova had contributed, the Washington Post says. On the same day as her snap trial, a former chief of the services Baku bureau was stopped at the airport, prevented from boarding a plane and told he was under a travel ban at the request of the prosecutors office. More than 26 journalists and staff of Radio Free Europe/Radio Liberty have been interrogated by Azeri authorities since a Dec 26 raid on the Baku bureau. The news organization is funded by the United States through the Broadcasting Board of Governors.
In a recent magazine advertisement, Aliyev said he wanted to make Azerbaijan one of the most developed and competitive countries in the world. It certainly wont become that if he continues to rule like a despot, the article concludes.
See the original post here:
The Washington Post: Aliyev showing signs of frantic despotism
Posted: February 26, 2015 at 11:48 am
Forced Blood Draws, DNA Collection and Biometric Scans: What Country Is This?
By John W. Whitehead
February 24, 2015
The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official. The framers would be appalled.Herman Schwartz,The Nation
Our freedomsespecially the Fourth Amendmentare being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrestanyindividual atanytime and for theslightestprovocation.
Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databasesthese are just a few ways in which Americans are being forced to accept that we have no control over what happens to our bodies during an encounter with government officials.
Worse, on a daily basis, Americans are being made to relinquish the most intimate details of who we areour biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are all guilty until proven innocent.
Thus far, the courts have done little to preserve our Fourth Amendment rights, let alone what shreds of bodily integrity remain to us.
For example, David Eckert was forced to undergoan anal cavity search, three enemas, and a colonoscopyafter allegedly failing to yield to a stop sign at a Wal-Mart parking lot. Cops justified the searches on the grounds that they suspected Eckert was carrying drugs because his posture [was] erect and he kept his legs together. No drugs were found. During a routine traffic stop, Leila Tarantino was subjected to two roadside strip searches in plain view of passing traffic, during which afemale officer forcibly removed a tampon from Tarantino. Nothing illegal was found. Nevertheless, such searches have been sanctioned by the courts, especially if accompanied by a search warrant (which is easily procured), as justified in the governments pursuit of drugs and weapons.
Close to 600 motorists leaving Penn State University one Friday night were stopped by police and, without their knowledge or consent, subjected to a breathalyzer test usingflashlights that can detect the presence of alcohol on a persons breath. These passive alcohol sensors are being hailed as a new weapon in the fight against DUIs. However, because they cannot be used as the basis for arrest, breathalyzer tests are still required. And for those who refuse to submit to a breathalyzer, there are forced blood draws. One such person is Michael Chorosky, who was surrounded by police, strapped to a gurney and thenhad his blood forcibly drawn after refusing to submit to a breathalyzer test. What country is this? What country is this? cried Chorosky during the forced blood draw.Thirty states presently allow police to do forced blood draws on driversas part of a nationwide No Refusal initiative funded by the federal government.
See the article here:
Forced Blood Draws, DNA Collection and Biometric Scans: What Country Is This?
Volokh Conspiracy: Second Amendment and people who had been committed to a mental institution 28 years ago
Posted: December 18, 2014 at 3:48 pm
Under federal law, people who have been involuntarily committed to a mental institution however long ago are barred from possessing guns. Congress agreed that people with long-past mental problems might now be sane, and thus not especially dangerous, and provided for a means to apply for restoration of gun rights. But then in 1992 Congress ordered ATF not to spend any money applying the restoration program. And while it provided, in 2007, that people could get their rights restored by applying to a state that has a qualifying program for evaluating applicants mental fitness, many states have no such program.
This case was brought by a resident of one such state that lacks a relief-from-disabilities program, Michigan. From the courts opinion, Tyler v. Hillsdale County Sheriffs Dept (6th Cir. Dec. 18, 2014):
This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person who has been committed to a mental institution, 18 U.S.C. 922(g)(4), violates the Second Amendment. Twenty-eight years ago, Clifford Charles Tyler was involuntarily committed for less than one month after allegedly undergoing an emotionally devastating divorce. Consequently, he can never possess a firearm. Tyler filed suit in federal court, seeking a declaratory judgment that 922(g)(4) is unconstitutional as applied to him. The district court dismissed Tylers suit for failure to state a claim. Because Tylers complaint validly states a violation of the Second Amendment, we reverse and remand.
Tyler is a seventy-three-year-old resident of Hillsdale County, Michigan. On January 2, 1986, a state probate court committed Tyler to a mental institution. Tyler alleges that he underwent an emotionally devastating divorce in 1985 and that he was involuntarily committed because of a risk that he might be suicidal.
Tyler submitted a 2012 substance-abuse evaluation containing additional information about his 1985 depression. In 1985, when Tyler was forty-five years old, Tylers wife of twenty-three years served him divorce papers. Prior to filing for divorce, Tylers ex-wife allegedly ran away with another man and depleted Tylers finances. Tyler felt overwhelmed and sat in the middle of the floor at home pounding his head. According to a mental-health evaluation submitted by Tyler, Tyler was crying non-stop, not sleeping, depressed, and suicidal at this time. Tylers daughters became scared and contacted the police. [Tyler was then involuntarily committed. -EV]
In 2012, Tyler underwent a psychological evaluation. Tyler informed the psychologist that he had never experienced a depressive episode other than his 1985 incident. The psychologists report indicated that Tyler has no criminal history. The psychologist contacted Tylers physician who also reported that she had not detected evidence of mental illness in Tyler. The psychologist determined that Tylers prior involuntary commitment appeared to be a brief reactive depressive episode in response to his wife divorcing him. The psychologist determined that there was no evidence of mental illness.
The court concluded quite rightly, I think that Hellers endorsement of restrictions on gun ownership by the mentally ill doesnt dispose of the case:
The Courts assurance that Heller does not cast doubt on prohibitions on the possession of firearms by the mentally ill does not resolve this case. For 922(g)(4) prohibits firearm possession not just by the mentally ill but by anyone who has been committed to a mental institution. Hellers assurance that the state may prohibit the mentally ill from possessing firearms may provide solid constitutional ground for 922(g)(4)s restriction as to an individual adjudicated as a mental defective, but it is insufficient by itself to support the restriction as to individuals who have been involuntarily committed at some time in the past.
The court then concluded that strict scrutiny (not intermediate scrutiny) was generally the proper test to apply to gun restrictions, outside those categories excluded from Second Amendment scrutiny by Heller. The court, however, predict[ed] that the application of strict scrutiny over intermediate scrutiny will not generally affect how circuits decide various challenges to federal firearm regulations; this might seem surprising, but the courts explanation of this prediction on pp. 26-27 strikes me as quite plausible. And the court then applied strict scrutiny here are some excerpts from the analysis, which focuses largely on the fact that Congress (1) chose to create a system for people with past mental commitments to regain their Second Amendment rights, but (2) then defunded the federal system and decided to rely on state choices whether to set up their own state systems:
At issue here is only 922(g)(4)s prohibition on possession by persons previously committed to a mental institution. Not all previously institutionalized persons are mentally ill at a later time, so the law is, at least somewhat, overbroad. But is it impermissibly so? Congress, in its efforts to keep firearms away from the mentally ill, may cast a wider net than is necessary to perfectly remove the harm. A prophylactic approach thus obviate[s] the necessity for large numbers of individualized determinations. But is 922(g)(4)s net too wide? Are previously institutionalized persons sufficiently dangerous, as a class, that it is permissible to deprive permanently all such persons of the Second Amendment right to bear arms?
Posted: December 16, 2014 at 5:41 am
Damon Roots new book Overruled: The Long War for Control of the U.S. Supreme Court is an impressive account of the conflict over judicial review between conservatives and libertarians. Most books about the recent history of judicial review and constitutional theory focus on the opposition between conservatives and liberals, Democrats and Republicans. By contrast, Root focuses primarily on the increasingly important faultline between libertarians and conservatives.
Libertarians and conservatives have cooperated on issues related to federalism, gun rights, and property rights. But they have also sharply disagreed on the role of judicial review in protecting the rights of gays and lesbians, limiting wartime executive power, and constraining police and prosecutors. As the leading writer on legal issues for Reason, the prominent libertarian publication, Root has covered many of these issues for years.
Root effectively traces libertarian-conservative disagreements over judicial review to their origins in the late nineteenth and early twentieth centuries, when Progressives attacked nineteenth century natural rights-based jurisprudence for what they regarded as unjustified judicial activism in protecting both economic liberties and noneconomic ones. As he notes, many early Progressives opposed not only the Courts enforcement of economic freedoms in cases like Lochner v. New York, but also judicial efforts to protect free speech and enforce other noneconomic freedoms. For example, leading Progressive Justice Louis Brandeis praised the Courts notorious decision to uphold mandatory sterilization of the mentally ill in Buck v. Bell as an example of cases where judges should give state governments free reign to meet..modern conditions by regulations (though he gradually came to support judicial protection of some other civil liberties).
Beginning in the 1920s and 1930s, political liberals gradually shifted towards supporting strong judicial intervention to protect noneconomic rights, even as they repudiated similar protection for economic freedoms and property rights. But, ironically, the original Progressive defense of judicial nonintervention was taken up by post-New Deal conservatives, including such notable legal theorists as Judge Robert H. Bork.
Root explains how the persistence of this tradition of judicial restraint on the conservative right has led to clashes between conservatives and libertarians in recent years. Even in some cases where the two groups agree on the outcome, there are important divergences over preferred rationales. For example, libertarians and conservatives worked together to expand judicial protection for Second Amendment rights in District of Columbia v> Heller (2008) and McDonald v. City of Chicago (2010). But, in the latter case, many conservatives opposed the libertarians efforts to revive judicial enforcement of the Privileges or Immunities Clause of the Fourteenth Amendment, fearing that this step would open the door to a new wave of judicial activism.
Roots book is probably the most thorough account of the libertarian-conservative debate over judicial review so far. The clash between the two may rise in importance, as libertarianism becomes a more important part of the political landscape. Younger Republicans are, on average, significantly more libertarian than their elders. The same is likely true of younger right of center elite lawyers and legal scholars. At the same time, it is unlikely that social conservatives will give up without a fight. Even as they fight over their differences, the two groups will also have to find some way to continue cooperating on the issues that unite them, especially since the legal left remains powerful and influential.
I do have two reservations about his otherwise excellent analysis. First, for some reason Root largely ignores the issue of same-sex marriage, which is one of the most important constitutional questions where libertarians and conservatives have differed in recent years. Though there are some exceptions in both camps, libertarian lawyers and legal scholars (including many here at the Volokh Conspiracy) have generally supported striking down laws banning same-sex marriage, while conservatives have forcefully opposed it. The issue is both important in and of itself, and an important indicator of the differences between the two camps.
Second, I think Root is too quick to characterize modern judicial conservatism as focused on judicial restraint. It is true that, since the 1960s and 70s, conservatives have devoted a great deal of time and effort to denouncing liberal judicial activism. But conservative judges such as William Rehnquist and Sandra Day OConnor have also long advocated stronger judicial enforcement of property rights and constitutional limits on federal power.
Root describes famed conservative legal theorist Robert Bork as a principled advocate of judicial minimalism. This was indeed an important element of Borks philosophy. But Bork was also a strong advocate of constitutional originalism, which sometimes requires aggressive judicial invalidation of legislation that goes against the original meaning of the Constitution. In his 1989 book The Tempting of America, Bork advocated judicial restraint, but also described New Deal-era decisions expanding congressional authority over the economy as judicial activism because they gave the federal government more power than it was entitled to under the original meaning.
Bork never seriously confronted the tension between his advocacy of originalism on the one hand, and his support for judicial deference to the democratic process on the other. For a long time, the same was true of many other judicial conservatives. Like Bork, they simultaneously advocated both originalism and judicial deference without giving much thought to possible contradictions between these commitments. The rise of libertarianism is one of several factors that have forced conservatives to devote greater thought to the issue in recent years.
Posted: November 26, 2014 at 1:45 pm
Google should start applying the European Unions right to be forgotten to its global, .com domain, European privacy regulators say.
European data protection authorities in the so-called Article 29 Working Party (WP29) have compiled a set of guidelines detailing how search engines should apply a court ruling that gave Europeans the right to be forgotten by search engines. As of the May decision, EU citizens have the right to compel search engines to remove search resultsin Europe for queries that include their names if the results are inadequate, irrelevant or no longer relevant, or excessive.
However, it is not enough to only de-list search results on EU domains, the WP29 said in a news release Wednesday. In order to give full effect to a persons rights as defined in the courts ruling, link removals in search results should be extended to .com domains.
Limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient means to satisfactorily guarantee the rights of a person according to the ruling, the group said. In practice, this means that in any case, de-listing should also be effective on all relevant .com domains in order to prevent circumvention of EU laws.
The guidelines, which have not yet been published in full, will probably cause a further escalation of the battle between privacy regulators and Google, as the search engine has so far refused to remove links on its .com domain.
Further reading:Wikipedia’s Jimmy Wales: ‘Right to be forgotten’ is censorship
Google has been removing links from all 28 EU country domains, as well as from the Google domains in Iceland, Liechtenstein, Norway and Switzerland, countries belonging to the European Free Trade Association (EFTA).
Links, however, are not removed from the international, .com domain, as it is clear to the company that other courts in other parts of the world wouldnt have reached the same conclusion as the Court of Justice of the European Union (CJEU), Googles Global Privacy Council, Peter Fleischer, explained last week.
Whether Google will change its policy remains unclear. We havent yet seen the Article 29 Working Partys guidelines, but we will study them carefully when theyre published, a Google spokesman said.
The WP29s guidelines also contain a list of common criteria that data protection authorities will apply to handle complaints filed with national offices following refusals of de-listing by search engines. The list contains 13 main criteria that should be applied on a case-by-case basis, and aims to provide a flexible tool to help authorities to make the right decisions.
Originally posted here:
Europe wants Google to expand 'right to be forgotten' censorship to global search