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The Return Of John C. Calhoun And Nullification

Via Yglesias, this is hilarious:

Gov. Rick Perry, raising the specter of a showdown with the Obama administration, suggested Thursday that he would consider invoking states’ rights protections under the 10th Amendment to resist the president’s healthcare plan, which he said would be "disastrous" for Texas.

Not since Andrew Jackson and John C. Calhoun grappled over tariffs have we seen a State claim the right to "nullify" a federal law. But Republicans seem capable anything these days. Hell, the Roberts Court might even uphold such a claim.

Speaking for me only

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Holder Vacates Mukasey Decision to Weaken Immigrants' Right to Fair Hearing

The John Ashcroft-Alberto Gonzales Justice Department advanced an obvious agenda: expand federal executive branch power while limiting the ability of individuals to resist its exercise. On his last day in office, Michael Mukasey furthered that agenda by stripping immigrants of a right that the Board of Immigration Appeals has protected since 1988 and that seven federal courts of appeals recognize: the right to the effective assistance of counsel in immigration proceedings. As a matter of "administrative grace," Mukasey generously [sarcasm alert] granted immigration judges the discretionary power in exceptional cases to reopen a hearing and grant relief to an immigrant who was prejudiced by his attorney's ineffective representation, provided the immigrant complies with the burdensome new procedures and heightened standard of proof that Mukasey put in his way. As a failsafe measure to assure that an immigrant won't prevail if the Justice Department wants him gone, Mukasey's decision allowed the Department to carry out the deportation while the immigrant's request to reopen a hearing is pending.

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More On Federalism, The Incorporation Doctrine And Heller

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How [will] arguments of this kind . . . affect proposals to “incorporate” the second amendment[?] - Judge Frank Easterbrook

Sandy Levinson discusses the issues I wrote about yesterday - the dissonance between the insistence by extreme conservatives that the individual 2nd Amendment rights discovered by the Roberts Court in Heller be incorporated into the Due Process Clause of the 14th Amendment and their stated commitment to the New Federalism. Levinson writes:

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Federalism, The Incorporation Doctrine And Heller

Adam Bonin writes about Sen. Jim DeMint's reaction to Judge Sonia Sotomayor's conventional statement that the issue of whether the individual Second Amendment rights recognized in Heller should be "incorporated" to apply to the States via the 14th Amendment is a question for the Supreme Court, not circuit courts of appeal.

Leaving aside the issue of whether DeMint was asking what Sotomayor's view would be as a Supreme Court Justice (my views on the propriety of such questions is discussed here (short answer, they are proper imo), I think the more interesting question is the interplay between the extreme conservative view on "federalism" and the incorporation doctrine. I'll consider that question on the flip.

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Advice And Consent

At The Volokh Conspiracy, Jonathan Adler and Todd Zywicki take the view of the Senate's "advise and consent" role that is consistent with the view they held for judicial nominations during the Bush Presidency. Ilya Somin takes a different view, one which I share. Zywicki writes:

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Extreme Conservative Judicial Activism And the Voting Rights Act

The "reporting" by the "Respectable Intellectual Center" (yes, I mean Jeff Rosen) "predicted" that Chief Justice John Roberts would prove to be a modest and moderate Justice (in fact, Rosen was sticking to his story on Roberts as late as July 2008 (Rosen wrote "It's still too early to judge Roberts's tenure, but it seems increasingly clear that liberals dodged a bullet when President Bush nominated him to be chief justice.")) In fact, Chief Justice Roberts has proven to be one of the most extreme conservative judicial activsts we have yet seen. Keep that in mind when you read any account on these issues by Rosen and the "Respectable Intellectual Center." Treating them as authoritative on these issues would be the equivalent of making Tom "Suck On This" Friedman your go-to analyst on Iraq. Roberts and his right wing band have proven to be extreme conservative judicial activists with little respect for the text of the Constitution, precedent, and the role of the Legislative Branch.

The latest threat posed by Chief Justice Roberts and his extreme conservative cohorts (Scalia, Thomas and Alito) is to the 14th and 15th Amendments to the Constitution and the Voting Rights Acts enacted and renewed by Congress under their Section 5 powers granted by those Amendments.

The Constitutional Accountability Center, issued this report (PDF) for its "The Shield" series and discuses the pending NAMUDNO case and the extreme judicial activism of the Roberts band:

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11 Dimensional Chess: 9th Circuit Rebuffs Obama Administration's State Secrets Claim

Via the Washington Independent (see also Glenn Greenwald's post, he will also have interview with the winning attorney, Ben Wizner of the ACLU), just as predicted by Obama supporters, his shrewd gambit to adopt the Bush Administration's position on the state ssecrets privilege has been soundly rebuffed by the Ninth Circuit in Mohammed v. Jeppesen Dataplan(PDF):

At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. . . . This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

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Proposing a Federalism Amendment To The Constitution

Randy Barnett in the WSJ:

[S]tate legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution. Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

Barnett would like such a convention to adopt a federalism amendment, checking federal power and restoring states rights. Barnett's proposal is principled. Insane but principled. States rights forever!

Speaking for me only

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Congressional "Privateers?"

I love the movie "Master And Commander." But as policy cue? (via DougJ):

Rep. Ron Paul (R-Texas) and a growing number of national security experts are calling on Congress to consider using letters of marque and reprisal, a power written into the Constitution that allows the United States to hire private citizens to keep international waters safe. . . . “The Constitution gives Congress the power to issue letters of marque and reprisal when a precise declaration of war is impossible due to the vagueness of the enemy,” Paul wrote in a press release. “Once letters of marque and reprisal are issued, every terrorist is essentially a marked man.”

Not the best idea I have heard recently. Consider this "national security expert's" take:

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Justice Thomas' Theory Of Rights And Government

Via Atrios, Adam Serwer criticizes Clarence Thomas for saying this:

‘Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a proliferation of rights.” “I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

Taken in isolation, I think you could use Thomas' statement as a starting point for progressive government. Think about it. What are the obligations and responsibilities of the citizenry to the country? How about, for one, contributing their fair share to the prosperity of the whole country. How about the rich have the responsibility and obligation to the nation to contribute to the Common Good? Of course, that is not what Thomas means:

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Scalia on Judicial Activism

Justice Scalia, speaking this week to an audience at William Carey University, expressed his familiar views on "judicial activism":

"There are four justices who have sat beside me who believe that the death penalty is now unconstitutional...and they believe it to be unconstitutional because they think it ought to be," he told the WCU audience.

Or maybe they believe the death penalty is unconstitutional because it is unconstitutional. If equal protection of the law means anything, it surely means that convicted defendants should not live or die based on the arbitrary charging decisions made by prosecutors, or the tendency of juries to vote for death when the crime victim is white. [more ...]

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Lawsuit Filed Over Indigent Defense in Georgia

The public defender crisis in Georgia has prompted new litigation.

A lawsuit filed Tuesday ... in Elbert County Superior Court, says hundreds of defendants unable to afford their own lawyers are not being provided representation as required under law. If lawyers for the defendants are not provided, their cases should be dismissed, the suit says.

Funny how "law and order" legislators are willing to enact new criminal offenses and harsh penalties, but are unwilling to fund indigent defense. How will the "law and order" lawmakers explain the potential dismissal of hundreds of criminal prosecutions caused by their irresponsible budgeting? [more ...]

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Is the Exclusionary Rule Dead?

Or is it merely on life support?

Here is an early result of the pernicious decision in Herring v. United States, the Supreme Court ruling that refused to apply the exclusionary rule to an unlawful search that resulted from a police agency's failure to remove a withdrawn warrant from its database:

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography. This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

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The 12 Person Jury Should Be Recognized As a Right

The Framers of the Constitution probably saw no need to define the characteristics of a jury when they guaranteed criminal defendants the right to a jury trial because it was commonly understood at the time that a jury consisted of twelve persons who needed to arrive at a unanimous verdict to find guilt. In 1970, however, the Supreme Court decided that six jurors were good enough, although it later concluded that five were insufficient. Despite that decision, 47 states and the federal government still require a twelve person jury in serious felony trials.

William Bolivar Deltoro, convicted of sexual assault by a Florida jury of six and sentenced to life, is asking the Court to reconsider the 1970 decision. As Steven Calabresi and Michael Saks argue, the Court should take the case and correct its erroneous precedent.

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Feingold And The Constitution

Adam Cohen writes:

Before the election, Senator Russ] Feingold argued that whoever won should make a priority of rolling back Bush administration policies that eroded constitutional rights and disrupted the careful system of checks and balances. Now that Mr. Obama — a onetime constitutional law professor who made this issue a cause early in the campaign — has won the election, there is both reason for optimism and increased pressure on the president-elect to keep his promises.

. . . Many reforms could be implemented directly by the next president. Mr. Obama could renounce Mr. Bush’s extreme views of executive power, including the notion that in many areas, the president can act as he wants without restraint by Congress or the judiciary. Mr. Obama also could declare his intention not to use presidential signing statements as Mr. Bush did in record numbers to reject parts of bills signed into law.

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