[90033] in Cypherpunks
Re: Mad as Hell (fwd)
daemon@ATHENA.MIT.EDU (Steve Schear)
Fri Nov 14 14:58:19 1997
In-Reply-To: <199711130452.WAA10417@einstein.ssz.com>
Date: Fri, 14 Nov 1997 10:49:52 -0800
To: Jim Choate <ravage@ssz.com>,
cypherpunks@ssz.com (Cypherpunks Distributed Remailer)
From: Steve Schear <schear@lvdi.net>
Reply-To: Steve Schear <schear@lvdi.net>
At 10:52 PM -0600 11/12/1997, Jim Choate wrote:
> ARTICLE X.=20
>=20
> The powers not delegated to the United States by the Constitution,=20
>nor prohibited by it to the States, are reserved to the States=
respectively,=20
>or to the people.=20
>
>
>In some manner the question of whether the first sentence is an implicit
>limitation of *all* laws and regulations at the federal level needs to be
>tested. In other words, each and every law *must* trace its existance to a
>specific set of sentences in the Constitution. If it could be found to be s=
o
>then each and every law and regulation at the federal would have to pass
>constitutional review at every stage of its existance within the federal
>government. Then a case needs to found of some situation say the founding o=
f
>a church based on smoking marijuana was a illegal entity under the 1st wher=
e
>it is found that such organizations were illegal (rather trivial I suspect)=
=2E
>At this point the wording of the 1st becomes *much* more specific.
[snip]
>
>Why some lawyer has not used this basic question in the numerous murder
>trials is truly amazing. If he wins a legal precidence is set. If he looses
>and gets to appeal. Then walk that appeals train right up to the fundamenta=
l
>question of the 10th. Forcing the Supreme Court to either reject, stating
>clearly their answer in favor of the majority, or else to review and find
>that laws must pass Constitutional muster. Either way the question gets
>answered.
Ignoring the Constitution because it's inconvenient is the slippery slope=
we've been on since Federal power was "illegally" expanded and the=
principle of judicial review was established in 1803 in the famous case of=
Marbury v. Madison. (As I recall this case centered on the establishment=
of a Federal Bank, the authority for which was not mentioned in said=
document, but which some wealthy and influential U.S. and Eurpoean bankers=
dearly wanted as a means to indebt our early republic and make it dependent=
on their largess. Hamilton, an avid supporter of commerce and the need for=
monetary policies and controls to foster expanded U.S. manufacturing,=
strongly backed such a bank. Hamilton was also the main political=
instigator of the unfair taxation which precipitated the Whiskey Rebellion,=
I believe the only time in which U.S. Army troops were ordered to fire on=
our own citizens.) Since then, any excuse the President and Congress can=
come up with is sufficient to create a new agency and expanded authority. =
Completely circumventing the Constitutional intent of the founders, which=
was only non-obvious to the politically savy SC judges.
----
=46riday, July 11, 1997
Isn't this court made up of conservatives?=20
By Leon Friedman
The Supreme Court has declared 141 federal laws unconstitutional, an average=
of less than one law every year.
But in the last week of its 1996-97 term, the Supreme Court declared three=
federal laws unconstitutional.=20
The laws involved were not minor or technical statutes. The court struck=
down the Religious Freedom Restoration Act, a law making it more difficult=
for government to burden religious practice, which was endorsed by almost=
all religious groups and passed by an almost unanimous Congress.
The court invalidated a provision of the Communications Decency Act, which=
tried to protect against indecent material being posted on the Internet=
where it would be available to children -- another provision that received=
almost complete Congressional approval.
=46inally, the court nullified a crucial Brady Act section requiring local=
police to make background checks of gun buyers to ensure that ex-criminals=
or mental patients don't purchase firearms.
The Rehnquist court is supposed to be composed of conservatives. Isn't it an=
article of faith among conservatives that the high court and all federal=
judges are supposed to defer to popular will as expressed through the legis=
lature?
Throughout our history, judicial review has been a double-edged sword. In=
the 1930s, a conservative Supreme Court -- the nine old men -- invalidated=
many New Deal laws on the grounds that Congress lacked power to regulate=
business affairs
across state lines. It was only when President Franklin Roosevelt threatened=
to pack the court that it backed off and decided that the New Deal Congress=
had the power to pass most of the reform laws in question.
Thirty years later, the situation was reversed. The Warren court invalidated=
a series of laws punishing Communist Party membership or restricting=
individual rights, relying on the First Amendment and other provisions of=
the Bill of Rights as the basis for its decisions. Then a howl went up=
among conservative critics that it was usurping the role of the legislature=
=2E
What has happened more recently is that leading members of the court have=
found a new rationale for striking down federal laws. Focusing on the=
structure of the Constitution and the need to restrict governmental power=
on all levels, this court has found new limits on what Congress can do.
In the Brady Act case, it held that Washington cannot make the states or=
state officials carry out federal policies or federal directives.=20
The other recent cases were also significant. The decision striking down the=
``indecency'' sections of the Communications Decency Act was in keeping=
with the court's concern about protecting First Amendment rights from being=
restricted by
Congress. But the other key decision was based on the court's conclusion=
that Congress could not expand individual rights, either.
In a case decided seven years ago, the court had limited the free exercise=
clause of the First Amendment. But under Section Five of the 14th=
Amendment, Congress has the power to ``enforce the provisions'' of that=
amendment ``by appropriate legislation,'' including the power to protect=
the constitutional rights of citizens against state encroachment.=20
Congress decided that the court's analysis of the free exercise clause was=
too restrictive, and it sought to expand religious rights by relying on its=
enforcement powers under Section Five. But the Supreme Court held that its=
judicial interpretation of the Bill of Rights was conclusive.=20
In restricting the power of Congress to act, the court has arrogated to=
itself far greater governmental powers than any other branch of government,=
and it has taken on far greater powers. And all this is being done under a=
conservative banner of judicial restraint
------
Leon Friedman is a professor of constitutional law at Hofstra University Law=
School.
