From: Steve Schear <schear@lvdi.net>
Date: Sat, 15 Nov 1997 03:23:54 +0800
To: Jim Choate <cypherpunks@ssz.com (Cypherpunks Distributed Remailer)
Subject: Re: Mad as Hell (fwd)
In-Reply-To: <199711130452.WAA10417@einstein.ssz.com>
Message-ID: <v0310280eb09249288971@[208.129.55.202]>
MIME-Version: 1.0
Content-Type: text/plain



At 10:52 PM -0600 11/12/1997, Jim Choate wrote:
>				ARTICLE X. 
> 
>	The powers not delegated to the United States by the Constitution, 
>nor prohibited by it to the States, are reserved to the States respectively, 
>or to the people. 
>
>
>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 so
>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 of
>a church based on smoking marijuana was a illegal entity under the 1st where
>it is found that such organizations were illegal (rather trivial I suspect).
>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 fundamental
>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.

----

Friday, July 11, 1997


                    Isn't this court made up of conservatives? 


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. 

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.

Finally, 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 legislature?

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.

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. 

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. 

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. 

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.