dr. elsewhere here
I know this is just terribly ad hoc, but what the hey. Truth is, working hard as I've been the past couple of weeks, I've had precious little time to follow the various nightmares and episodes of our whacked out world.
But one thing nagging me pretty incessantly is this bill Specter has now passed through the Senate Judiciary Committee (10-8) that gives the Prez unprecedented powers to spy on US citizens. Ever since it was first mentioned, I could not figure just how they would do this without continuing to violate the 4th Amendment. Remember, Judge Taylor did not just state that the spying violates law, she emphasized that it violates the Constitution.
So the question is this: How can they simply legislate against the Constition? Last I checked - um, in the Constitution - this sort of change requires an Amendment. Big difference.
Well, leave it to Christy at FDL to pose the question, and with far greater eloquence than my non-lawyer mind could ever.
And, be sure to read through, as she posts a comment contribution on what we believe that is stellar! You might also find this post on this same topic of interest there, too.
Finally, this is one to call both of your Senators about, and pronto! This question needs to be raised repeatedly on the Senate floor and in the press.
How can they legislate an unConstitutional action into law? Every Senator who votes for it will have then violated his or her oath to uphold the Constitution, and should be removed from office in shame.
Of course, Bush and his entire crew should be removed for same, on so many counts.
5 comments:
sofla said...
Legislatures are allowed to pass, and executives to sign, measures that later turn out overturned by the courts on Constitutional grounds. This is obvious enough, given that almost all of us have heard of the end result 's occuring-- such and such a law was struck down as unConstitutional. It must have been duly passed into law in the normal ways that occurs, as a precondition for its being later overturned.
Sometimes an executive gets a rasher of bad publicity for refusing to sign a law he considered unConsitutional, as when then-Massachusetts Gov. Michael Dukakis vetoed a bill that had been passed concerning mandatory recitation of the pledge of allegiance in public schools. Rather than praising his adherence to high principle and his oath to defend the Constitution, this was used to cast Dukakis as an unAmerican crypto-commie or something.
As a better politician, President Bill Clinton signed the obviously unConstitutional Cable Decency Act, wherein 'obscenity' was banned from computer communications, without the slightest attempt to define that term. That law WAS indeed overturned by the high court.
Lastly, Bush bowed to political realities, and despite his stated belief that the McCain/Feingold campaign finance bill was an unConstitutional abridgement of (political) speech, decided to sign the bill (perhaps hoping the Supremes would throw it out later).
So, it's a commonplace for executives and legislatures to flirt with unConstitutional measures, sometimes voting for them, sometimes against, and every possible variation of this theme, as exemplified above from recent history, has and will continue to take place.
I agree with sofla. It takes a while for a bill to be declared unconstitutional. And in that while, mischief may occur.
but guys, this is different. these actions have ALREADY been declared unconstitutional! it's not as if they're trying to write the law, and then see what the courts say; the court has already spoken!
that being the case, this new law is not just being put out there to test the waters; it is in utter defiance of the judge's ruling. and she did not just speak about the actions in question being illegal; she expressly spanked them them on this, as well as the unconstitutionality of them.
i was heartened by christy's query, as she is herself a former state prosecutor. i'm exploring legal opinions from others, as well. not sure if glenn greenwald has weighed in on this specific point, but i'll look.
sofla said:
Those kinds of actions have been declared unConstitutional, but the ruling only applies in the district of this particular judge's authority. Only a SCOTUS upholding of her ruling on appeal would make it binding in all 50 states. It is not yet settled Constitutional law.
Even when it is settled Constitutional law, Congress may still try to get a countermeasure through, as was the case of the Decency in Communications Act. No law is Constitutional that is overly vague, and cannot provide citizens with knowledge of what exactly is being made illegal. But the act relied upon making 'obscenity,' otherwise left undefined, illegal, and that is a notoriously slippery and ill-defined term. It had already been ruled a vague term by prior court decisions. Yet it was passed by Congress and signed into law by a former professor of Constitutional law, who surely knew of its manifest legal flaw in that regard.
Article 1, Section 8 of the US Constitution says explicitly:
No bill of attainder or ex post facto Law shall be passed.
Len Hart repeats this fairly regularly at his excellent blog. His quote from the US criminal code is also worth restating:
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
—Cornell Law School, US Code Collection, US Codes; Title 18, § 2441. War crimes
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