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U.S. Constitution
See other U.S. Constitution Articles

Title: The 5 Worst Supreme Court Rulings of the Past 50 Years
Source: Reason
URL Source: https://reason.com/archives/2018/11 ... the-5-worst-supreme-court-ruli
Published: Nov 19, 2018
Author: Damon Root
Post Date: 2018-11-19 07:53:06 by Deckard
Keywords: None
Views: 415
Comments: 38

Cases in which a majority of the Court fell down on the job.

James Madison once said that the job of the U.S. Supreme Court was to act as "an impenetrable bulwark against every assumption of power in the legislative or executive." Unfortunately, the justices have not always seen their role in the same light. Here are five cases from the past five decades in which a majority of the Court fell down on the job.

1. Smith v. Maryland (1979)

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But according to the Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Lawyers call this the third-party doctrine. Prosecutors and police call it the gift that keeps on giving. Let's say the cops want to know what websites you've been reading. The third party doctrine lets them get that information from your internet service provider without obtaining a search warrant first. So much for that pesky Fourth Amendment and the privacy rights it was designed to protect.

2. Harlow v. Fitzgerald (1982)

What do libertarian-leaning federal Judge Don Willett and liberal U.S. Supreme Court Justice Sonia Sotomayor have in common? They both despise the modern doctrine of qualified immunity.

In Harlow v. Fitzgerald (1982), the Supreme Court held that government officials are entitled to immunity from civil suits so long as the specific conduct they're being sued over "does not violate clearly established statutory or constitutional rights."

What that means in practice, Willett observed in a 2018 opinion, is that "public officials [can] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Sotomayor concurs. The Court's "one-sided approach to qualified immunity," she wrote in a 2018 case, "transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment."

Case in point: In 2017, the U.S. Court of Appeals for the 6th Circuit concluded that a Michigan police officer violated the Fourth Amendment when he shot and killed a fleeing suspect. But the court gave the officer qualified immunity anyway, because the situation did not perfectly match anything found in prior case law and therefore "controlling authority at the time of the events had not clearly established the rights we identify today."

3. Bennis v. Michigan (1996)

According to the Fifth Amendment, the government may not deprive any person of life, liberty, or property without due process of law. Yet thanks to the widespread practice known as civil asset forfeiture, law enforcement agencies get to seize cash, cars, houses, boats, and other property from people who have been neither charged nor convicted of any underlying crime, if they merely say they suspect the property was connected to a crime. To make matters worse, the Supreme Court has given a rubber stamp of approval to this unconstitutional state of affairs. According to Bennis v. Michigan (1996), "the innocent owner defense" is no shield against a state's civil asset forfeiture regime. Where's the due process in that?

4. Kelo v. City of New London (2005)

Speaking of the Fifth Amendment, it also forbids the government from wielding its powers to seize property through eminent domain for anything less than a "public use." Yet in Kelo v. City of New London (2005), the Supreme Court allowed a Connecticut municipality to bulldoze a working-class neighborhood so that private developers would have a blank slate on which to build a luxury hotel, a conference center, and various other upscale amenities. Public use? More like public power unleashed on behalf of private gain.

The Court upheld the land grab on the grounds that government officials are entitled to "broad latitude in determining what public needs justify the use of the takings power." In other words, the city of New London was permitted to define—and to enlarge—the scope of its own eminent domain authority, unencumbered by any constitutional limitations.

5. Gonzales v. Raich (2005)

Article 1, Section 8 of the U.S. Constitution recognizes the congressional authority "to regulate commerce…among the several states." In Wickard v. Filburn (1942), the Supreme Court gave federal lawmakers a massive shot of steroids, enlarging their power in this area to include the regulation of wholly local activity if it has a "substantial economic effect" on the national market.

Six decades later, in Gonzales v. Raich (2005), the Court handed Congress even more power, upholding a federal ban on marijuana, even as applied to plants that were cultivated and consumed by patients for their own doctor-prescribed use in states where medical cannabis was perfectly legal. As Justice Clarence Thomas observed in dissent, "by holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

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#1. To: Deckard (#0)

The first four are terrible decisions. The fifth decision was correct. Federal law trumps state law. States have no right to opt out of the federal drug law, to nullify federal law in their territory. Gonzales upholds federal supremacy. It was correctly decided.

Vicomte13  posted on  2018-11-19   8:06:59 ET  Reply   Trace   Private Reply  


#2. To: Vicomte13 (#1)

In truth the states created the federal government. The states are superior and can dissolve the federal government.

A K A Stone  posted on  2018-11-19   9:04:56 ET  Reply   Trace   Private Reply  


#3. To: Vicomte13 (#1)

Federal law trumps state law. States have no right to opt out of the federal drug law, to nullify federal law in their territory. Gonzales upholds federal supremacy. It was correctly decided.

Even if the jurisdiction for doing so is "interstate commerce" when, as Thomas pointed out, the activity involves neither commerce nor is interstate?

What is the constitutional jurisdiction for banning drugs?

Pinguinite  posted on  2018-11-19   10:58:59 ET  Reply   Trace   Private Reply  


#4. To: A K A Stone (#2)

In truth the states created the federal government. The states are superior and can dissolve the federal government.

In truth, the British Crown created the first 13 states, who created the national government for the purpose of winning their independence, so the national government and the state government, as independent entities, were both born at the same instant, and it was the government of the United States that declared independence from Great Britain, not the individual states.

Truth also is that it was the national army of the confederal nation that defeated the British, not the states. George Washington and the other generals of the Continental Army did not serve any state, they served the government of the United States and took their orders from Congress.

Truth is that the other 37 states were all created by the United States out of federal territory. Federal law determined how they would be shaped, the lands were sold to settlers by the federal government, federal law determined what they had to do to apply to become states, and only once they had did the federal government concede local governance to the states that it created.

So, 37 states were created by the federal government out of land conquered by the federal government of the United States, while the original 13 states were created by the King of England, and simultaneously came into existence with the United States. None of the original states won its own independence and called forth the United States. Rather, colonies created the confederal government, which then fought and won the war with confederal forces that were paid for by taxes upon the states.

The states did not exist as indpedendent sovereignties at any point in time. They were British, and then the government of the United States, which they created to escape Britain, is what declared them independent, and thus transformed them from British colonies into component parts of a new nation.

The national government and its declaration is what converted Virginia from a colony dependent on Great Britain into a state dependent on the fortunes of the United States to secure its independence. At no point in history was Virginia ever a sovereign and independent state outside of the Union.

The only states that were something like that were Texas, which gained its independence from Mexico, and Hawaii, which was a kingdom in its own right. California declared itself a "republic" during the chaos of the Mexican fall in the Mexican-American War, but it only dared do so because the federal government of the United States was overrunning Mexico.

So, really in truth, the colonies created the confederal government, and the states only came into existence as entities when the confederal government declared national independence. Then the states were in confederal union from the beginning of their independence, and none of the original 13 was ever an independent country on its own accord. They gained their independence because of the United States government - they did not precede it as independent entities.

Vicomte13  posted on  2018-11-19   12:18:43 ET  Reply   Trace   Private Reply  


#5. To: Vicomte13 (#4)

The same way Catholics lie about the Bible. You stretch things about the founding.

The states created the federal government. They can dissolve it on a whim.

A K A Stone  posted on  2018-11-19   12:20:57 ET  Reply   Trace   Private Reply  


#6. To: Pinguinite (#3)

What is the constitutional jurisdiction for banning drugs?

Article III: The judicial power is vested in the Supreme Court.

In Marbury v. Madison the Supreme Court established its authority of judicial review, which has either never been challenged or has only been challenged a few times in extraordinary circumstances, depending on how one looks at the fact patterns (hat tip to Nolu Chan for keeping me strictly in line with the facts).

The Supreme Court has consistently ruled on drug cases, without entertaining the notion that the drug laws themselves are unconstitutional, demonstrating that it believes that the federal government has the power to regulate drugs.

And that settles that.

Ergo, the constitutional jurisdiction for banning drugs is found in a negative inference derived from the behavior of the federal courts under Article III.

Vicomte13  posted on  2018-11-19   13:31:23 ET  Reply   Trace   Private Reply  


#7. To: A K A Stone (#5)

The same way Catholics lie about the Bible. You stretch things about the founding. The states created the federal government. They can dissolve it on a whim.

Actually, I am precise about the founding. The reality of the history means that the Civics 101 shorthand story you believe in isn't really right.

Just like the Catholics, with all of that history and experience underpinning each and every thing.

The states cannot dissolve the federal government on a whim. They can't leave on their own accord either. 1861-1865 is powerful precedent on that latter score.

Vicomte13  posted on  2018-11-19   13:34:35 ET  Reply   Trace   Private Reply  


#8. To: A K A Stone (#2)

Where was Roe V Wade in the list ???

Si vis pacem, para bellum

Rebellion to tyrants is obedience to God.

Never Pick A Fight With An Old Man He Will Just Shoot You He Can't Afford To Get Hurt

"If there are no dogs in Heaven, then when I die I want to go where they went." (Will Rogers)

"No one ever rescues an old dog. They lay in a cage until they die. PLEASE save one. None of us wants to die cold and alone... --Dennis Olson "

AMERICA! Designed by geniuses. Now run by idiots.

Stoner  posted on  2018-11-19   15:13:35 ET  Reply   Trace   Private Reply  


#9. To: Vicomte13 (#6)

Ergo, the constitutional jurisdiction for banning drugs is found in a negative inference derived from the behavior of the federal courts under Article III.

Then why do you consider only the 5th decision good an the other 4 bad?

Pinguinite  posted on  2018-11-19   17:02:48 ET  Reply   Trace   Private Reply  


#10. To: Pinguinite (#9)

Just because the federal government has the power to do something doesn't mean that it should.

The states have the power to establish state religions, at least they used to: bad idea.

The federal government has the power to institute the draft. Bad idea.

In my opinion, drug laws create crime and grant massive powers to police departments to intrude on people's lives. I think that's far worse than the effects of letting people do drugs in the privacy of their own spaces.

The parallel is Prohibition. The federal government had the power to do it. But it should not have done it. It did it, and it was a disaster, the negative effects of which were never fully healed.

The scope of what government constitutionally CAN do is stunningly vast. The range of things that government SHOULD do is much more constrained.

I would have preferred that the Supreme Court decide the first four cases in ways that sharply limited the power of the federal government and local governments in those spheres, thereby establishing a formal legal precedent. The fifth issue cuts the other way, in terms of desired outcome.

Vicomte13  posted on  2018-11-19   19:42:16 ET  Reply   Trace   Private Reply  


#11. To: Vicomte13 (#10)

You lost me.

Again, you said the 5th decision was a good decision, and you seemed to justify it upon challenge by saying that the power of gov to regulate/ban drugs is long standing, which of course says nothing about why it's a **good** decision.

Now you say that drug laws have bad outcomes, and yet you say the USSC ruling affirming the fed's jurisdiction so it could prosecute an intrastate drug case that involved no interstate activity or interstate commerce under the "interstate commerce" clause was a good decision.

So... you lost me.

Pinguinite  posted on  2018-11-19   20:46:50 ET  Reply   Trace   Private Reply  


#12. To: Vicomte13 (#7)

Murder as a precedent.

You're an idiot.

A K A Stone  posted on  2018-11-19   21:15:53 ET  Reply   Trace   Private Reply  


#13. To: Stoner (#8)

Because the author doesn't care.

A K A Stone  posted on  2018-11-19   21:18:04 ET  Reply   Trace   Private Reply  


#14. To: A K A Stone, Stoner, Deckard (#13)

Because the author doesn't care.

Perhaps you don't understand the author's priorities. You might want to consider that perspective, assuming you have time.

buckeroo  posted on  2018-11-19   22:10:22 ET  Reply   Trace   Private Reply  


#15. To: buckeroo (#14) (Edited)

Perhaps you don't understand the author's priorities

Are you suggesting that protecting ones right to internet surfing history is a higher priority than the right to life?

Stone has a valid point. That’s why I considered all Dicktards posts to be AGENDA DRIVEN, not constitutional RIGHTS driven. Dicktard would kill a child if it guaranteed his unfettered ability to do anything he wants, as long as nobody can tell he’s doing it.

I'm the infidel... Allah warned you about. كافر المسلح

GrandIsland  posted on  2018-11-19   22:29:33 ET  Reply   Trace   Private Reply  


#16. To: GrandIsland (#15)

Trump pays Planned Parenthood to kill babies, then he buys the Fresh Dead Baby Parts for government ghouls to use in "research".

He's one sick psycho baby killer.


hondo68  posted on  2018-11-19   22:34:25 ET  Reply   Trace   Private Reply  


#17. To: GrandIsland (#15)

Are you suggesting that protecting ones right to internet surfing history is a higher priority than the right to life?

No

buckeroo  posted on  2018-11-20   0:17:55 ET  Reply   Trace   Private Reply  


#18. To: Pinguinite (#11)

you lost me

Let me try again, then.

The subject matter of the first four cases was the limitation of the police in their power to molest and trap individual people. The rights to privacy and to due process should be very strong when the weak individual comes into contact with the overwhelmingly powerful police and prosecutorial apparatus.

Yes, there is a state interest in enforcing the drug laws, but I assert that the individual's right to privacy is more important than the state's interest in getting a conviction against an individual person.

With Kelo, you once again have the state using its power to crush individuals. I side with the individual.

But with the fifth decision, the actors are different. We are not talking about the police crushing individual rights to get convictions. We are talking about the states trying to override the federal government and set their own laws of drugs contrary to national policy.

"States Rights" is an old canard. Until the 1970s it meant one thing: the state's "right" to set up racial discrimination policies within its borders. Which effectively meant the state's asserted right to use its massive police power in its border to pick winners and losers based on race. Nope. Once again, individuals have to be protected against excessive police power, and the state's rights to use race power to enforce racial inequality must be dissolved in the face of superior federal power to enforce equality upon the states against the will of their racist governments and populations. The rights of minority individuals everywhere in America trump the political rights of any group of Americans to suppress those rights, and the states cannot be permitted to hide behind the Constitution to enforce racism. That is precisely what they DID for the first 190 odd years of the Republic, and that game is over.

Since then, the states try to assert states rights for different purposes, always to override federal law and federal policy. The "Sanctuary Cities" and "Sanctuary States" is an excellent example, Some states have decided that federal immigration law stinks, so they're not going to enforce it, and they pass laws and prevent the federal law from being applied in their territory. That fifth decision aims straight at the heart of the argument that backs Sanctuary Cities. States assert that they can nullify federal law. They used to do it over slavery and segregation. Now it's over immigration and drugs. And the answer to that is NOPE. The fifth decision was a NOPE decision to that "Sanctuary City" style urge to secede from federal law. Nope, you don't have the right, as a state, to override Federal law. The fifth decision made that clear (again). It was rightly decided.

Individual rights to not be molested by the authorities in their private lives is very important. That's why the first four decisions were decided wrongly.

But we have a long history in this country of states full of bigots trying to use "States Rights" as an argument for secession from federal law. Slavery, Segregation, Sanctuary Cities, Drugs - the states keep trying to do it, and the Supreme Court keeps slapping them down when they do. The fifth decision was one of those slapdowns. States don't have the right to segregate. They don't have the right to Sanctuary Cities. And they don't have the right to override federal drug law. Nope. Nope. And Nope.

Vicomte13  posted on  2018-11-20   6:45:31 ET  Reply   Trace   Private Reply  


#19. To: A K A Stone (#12)

Murder as a precedent.

Maintaining the state requires copious amounts of human blood and many destroyed lives - in the streets and on the battlefields.

That people will be killed for the state to survive is inevitable. The only question is who we may legitimately sacrifice for the survival of the society as a whole. I accept that we must sacrifice the lives of people who commit crimes, that the law in the abstract is more important than individual human lives. I accept this even though I know that some innocent lives are lost and some innocent blood is shed. The alternative is the collapse of the state and general starvation. So, for the survival of society, some innocents inevitably must be sacrificed to law enforcement. Don't like it, don't want it, but I accept it.

Similarly, all battle dead in war are fundamentally innocent lives. They're not criminals. They're young men, mostly, and some women, from the society who put on the uniform to defend it. By sending them into battle, we are knowingly sacrificing some of them. We are trading their lives and limbs for our overall prosperity and security. We don't have to do that. We could isolate ourselves or maintain a trivial military. But we would be poorer and less secure, at least in our minds, if we did so. So, once again, I am willing to sacrifice innocent American lives, men and women, for my overall prosperity and security. That's what sending our armed forces into battle is: accepting that we will be spending some of our people's lives for a political result that is better for us in bulk.

To maintain a nation state, human sacrifice is required on the altar of law and war. We would be poorer and weaker and less secure on the whole if we did not, so I say do it. I wish we could have peace and security without human sacrifice, but we cannot. Therefore, I accept the sacrifice without further resistance. It is necessary, the good of the whole is very important: the end justifies the means.

When it comes to unborn babies, the society has decided that the cost in welfare, crime and anguish of mothers - also the anguish of the unwanted children themselves and the anguish of growing up deformed - are al more important than any individual baby's life, and that up to a certain point the mother alone has the right to decide to kill her baby. The majority of the American people are willing to sacrifice those unborn babies' lives for the stability and security and prosperity of their overall society and their own peace of mind.

I am not. But I recognise that it is impossible to ban abortion without a substantial expansion of the social welfare state to cover the cost of so many more poor people being born every year. So, I am willing to sacrifice the financial liberty of the people, to a certain extent, in order to provide for the survival of those babies who otherwise would be aborted.

You like to call me an idiot, but really, you're the one who stomps his feet like a petulant child and simultaneously asserts NO ABORTION and NO SOCIAL WELFARE. This is a bone stupid position whose effects are perfectly obvious to anybody with an ounce of foresight, which means that it will never happen. The people are too smart, and too good, actually, to do that.

We MIGHT be able to abolish abortion. The trade off will be a lot more social welfare. Without the social welfare expansion to cover all of those new poor people, there is no chance whatever of abolishing abortion - the people will never allow it - they will make the rational decision they already make: some innocents have to die for us to have law and order, some innocents have to die abroad for us to have peace and prosperity, and a lot of unborn babies have to die at home for us to maintain our lifestyles.

You focus on the one element: the babies, and make that an uber alles thing. Why are babies lives more important than, say, the lives of innocent people killed by the cops, or soidiers deployed abroad? They're not. We are willing to accept those losses, and our society is willing to accept the losses of the babies.

But it's MURDER. It's also murder when the cops shoot the wrong man, or a soldier on duty gets killed. We could avoid those murders by not engaging in that sort of law enforcement or that sort of military activity. We do because the ends justify the means.

I myself have said many times that I think the lives of the unborn should be preserved. But I'm a realist who follows that up with the bitter truth that the trade off is more social welfare. You're a child who pretends you can have your cake and eat it too. Well, you can't. Not in the real world.

If you care about the babies, you will accept the social welfare to pay for them. if you won't, you don't really care about the babies at all, it's just a loudmouthed childish posture. You "care" but you won't pay. You can justify your position all you want with petulant foot stamping about how it SHOULD be...in the little world of Stone...but it's not that way, and won't be. You want to save the babies, man up and pay up. You love money more than the babies? And you DO love the money more than the babies. Well, I'd tell you to shut up, but you won't do that either. You'll bellow away, and beat on me, because the world isn't the way you want it.

And you will love and die in a world that will never remotely resemble what you want, because it shouldn't, and people won't follow you there, because you're wrong.

Save the babies: pay for them to grow.

Vicomte13  posted on  2018-11-20   7:03:36 ET  Reply   Trace   Private Reply  


#20. To: Vicomte13 (#19)

Maintaining the state requires copious amounts of human blood and many destroyed lives - in the streets and on the battlefields.

Are you quoting Hitler or Mussolini?

A K A Stone  posted on  2018-11-20   7:12:39 ET  Reply   Trace   Private Reply  


#21. To: Vicomte13 (#19)

But I recognise that it is impossible to ban abortion without a substantial expansion of the social welfare state to cover the cost of so many more poor people being born every year.

I wouldn't let you near my kids or grandkids. You would sell them for a hot dog.

You also hate poor people. You think they are inferior and you are ok with murdering them.

You jyustify it with long winded bullshit.

A K A Stone  posted on  2018-11-20   7:15:50 ET  Reply   Trace   Private Reply  


#22. To: Vicomte13 (#19)

asserts NO ABORTION and NO SOCIAL WELFARE.

The truth is not in your words.

Secondly the supreme court rules no abortion.

There is no welfare state needed.

In fact is is DUMB ASSES like you WHO THINK THEY ARE SMART BUT AREN"T who caused a large part of the mess we are in.

Your welfare state attracted the whole world here. Now they are here breeding and taking over.

It is idiots like you who should never have their ideas inacted. King of the lizards and rats.

A K A Stone  posted on  2018-11-20   7:18:35 ET  Reply   Trace   Private Reply  


#23. To: Vicomte13 (#19)

Vic your philisophy is you have to be a murderer or a thief.

You can't be a thief unless you murder.

If you don't murder you have to steal.

No faith. Straight out of hell.

A K A Stone  posted on  2018-11-20   7:28:49 ET  Reply   Trace   Private Reply  


#24. To: A K A Stone (#22)

Your welfare state attracted the whole world here.

The only people I know who like the Welfare state are those who want to live off of others hard work, or they have totally useless family members that they don't want to have to deal with and pawn them off on others.

Vegetarians eat vegetables. Beware of humanitarians!

CZ82  posted on  2018-11-20   7:42:47 ET  Reply   Trace   Private Reply  


#25. To: A K A Stone (#20)

Are you quoting Hitler or Mussolini?

I am observing reality.

Vicomte13  posted on  2018-11-20   8:42:18 ET  Reply   Trace   Private Reply  


#26. To: Vicomte13 (#18)

Okay, thanks.

Pinguinite  posted on  2018-11-20   8:45:48 ET  Reply   Trace   Private Reply  


#27. To: A K A Stone (#23)

Alright. We're done. The Left will win. The strong prevail, and the Left are stronger and smarter. And frankly, nicer.

I'm done trying to find a compromise with your side. Go down with your ship. You deserve to.

Vicomte13  posted on  2018-11-20   8:49:30 ET  Reply   Trace   Private Reply  


#28. To: A K A Stone (#22)

In fact is is DUMB ASSES like you WHO THINK THEY ARE SMART BUT AREN"T who caused a large part of the mess we are in. Your welfare state attracted the whole world here. Now they are here breeding and taking over. It is idiots like you who should never have their ideas inacted. King of the lizards and rats.

Charming.

Vicomte13  posted on  2018-11-20   9:07:37 ET  Reply   Trace   Private Reply  


#29. To: Deckard, Stoner, A K A Stone (#0)

Amazingly, Roe v. Wade, 410 U.S. 113, 153 (1973) escaped the attention of Reason. Not really, the ruling in Roe comports with Reason, so they consider the activist ruling good, rather than bad.

I consider a good court opinion to be one where the court correctly identifies the applicable law, and applies that law to the facts. When they fail in that responsibility, I consider it a bad opinion. It has nothing to do with whether I support the outcome. The court is not there to apply the law they think should exist, but to apply the law as written and actually existing.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

In his dissenting opinion, Justice Rehnquist noted one obvious failure of evidence in the case.

The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U.S. 163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this case makes clear, however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of thedate the complaint was filed.

nolu chan  posted on  2018-11-20   12:37:56 ET  Reply   Trace   Private Reply  


#30. To: Deckard (#0)

1. Smith v. Maryland (1979)

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But according to the Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Lawyers call this the third-party doctrine. Prosecutors and police call it the gift that keeps on giving. Let's say the cops want to know what websites you've been reading. The third party doctrine lets them get that information from your internet service provider without obtaining a search warrant first. So much for that pesky Fourth Amendment and the privacy rights it was designed to protect.

Smith is correct. The 4th Amendment has nothing to do with anyone's person, houses, papers, or effects, except one's own. It was never designed to protect an individual's imaginary rights regarding property that is neither his nor in his possession.

One may want to change the law, or amend the Constitution, but bitching and citing comments dissenting from the majority opinion of the court does not change anything.

nolu chan  posted on  2018-11-20   12:39:28 ET  Reply   Trace   Private Reply  


#31. To: Deckard (#0)

2. Harlow v. Fitzgerald (1982)

In Harlow v. Fitzgerald (1982), the Supreme Court held that government officials are entitled to immunity from civil suits so long as the specific conduct they're being sued over "does not violate clearly established statutory or constitutional rights."

Let's see that without truncation, and with context.

457 U.S. 800 (1982) (8-1)

U.S. Supreme Court

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Harlow v. Fitzgerald

No. 80-945

Argued November 30, 1981

Decided June 24, 1982

457 U.S. 800

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

In respondent's civil damages action in Federal District Court based on his alleged unlawful discharge from employment in the Department of the Air Force, petitioners, White House aides to former President Nixon, were codefendants with him and were claimed to have participated in the same alleged conspiracy to violate respondent's constitutional and statutory rights as was involved in Nixon v. Fitzgerald, ante p. 457 U. S. 731. After extensive pretrial discovery, the District Court denied the motions of petitioners and the former President for summary judgment, holding, inter alia, that petitioners were not entitled to absolute immunity from suit. Independently of the former President, petitioners appealed the denial of their immunity defense, but the Court of Appeals dismissed the appeal.

Held:

1. Government officials whose special functions or constitutional status requires complete protection from suits for damages -- including certain officials of the Executive Branch, such as prosecutors and similar officials, see Butz v. Economou, 438 U. S. 478, and the President, Nixon v. Fitzgerald, ante p. 457 U. S. 731 -- are entitled to the defense of absolute immunity. However, executive officials in general are usually entitled to only qualified or good faith immunity. The recognition of a qualified immunity defense for high executives reflects an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority. Scheuer v. Rhodes, 416 U. S. 232. Federal officials seeking absolute immunity from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope. Pp. 457 U. S. 806-808.

2. Public policy does not require a blanket recognition of absolute immunity for Presidential aides. Cf. Butz, supra. Pp. 457 U. S. 808-813.

(a) The rationale of Gravel v. United States, 408 U. S. 606 -- which held the Speech and Debate Clause derivatively applicable to the "legislative acts" of a Senator's aide that would have been privileged if performed by the Senator himself -- does not mandate "derivative" absolute

Page 457 U. S. 801

immunity for the President's chief aides. Under the "functional" approach to immunity law, immunity protection extends no further than its justification warrants. Pp. 457 U. S. 809-811.

(b) While absolute immunity might be justified for aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, a "special functions" rationale does not warrant a blanket recognition of absolute immunity for all Presidential aides in the performance of all their duties. To establish entitlement to absolute immunity, a Presidential aide first must show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He then must demonstrate that he was discharging the protected function when performing the act for which liability is asserted. Under the record in this case, neither petitioner has made the requisite showing for absolute immunity. However, the possibility that petitioners, on remand, can satisfy the proper standards is not foreclosed. Pp. 457 U. S. 811-813.

3. Petitioners are entitled to application of the qualified immunity standard that permits the defeat of insubstantial claims without resort to trial. Pp. 457 U. S. 813-820.

(a) The previously recognized "subjective" aspect of qualified or "good faith" immunity -- whereby such immunity is not available if the official asserting the defense "took the action with the malicious intention to cause a deprivation of constitutional rights or other injury," Wood v. Strickland, 420 U. S. 308, 420 U. S. 322 -- frequently has proved incompatible with the principle that insubstantial claims should not proceed to trial. Henceforth, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate "clearly established" statutory or constitutional rights of which a reasonable person would have known. Pp. 457 U. S. 815-819.

(b) The case is remanded for the District Court's reconsideration of the question whether respondent's pretrial showings were insufficient to withstand petitioners' motion for summary judgment. Pp. 457 U. S. 819-820.

Vacated and remanded.

POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 457 U. S. 820. BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., filed a separate concurring statement, post, p. 457 U. S. 821. REHNQUIST, J., filed a concurring opinion, post, p. 457 U. S. 822. BURGER, C.J., filed a dissenting opinion, post, p. 457 U. S. 822.

Page 457 U. S. 802

JUSTICE POWELL delivered the opinion of the Court.

- - - - - - - - - - - - - - - - - - - -

What that means in practice, Willett observed in a 2018 opinion, is that "public officials [can] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Who is Willett? What opinion? What court? What case?

http://www.ca5.uscourts.gov/opinions/pub/17/17-50518%20-CV0.pdf

Zadeh v Robinson, 17-50518 (5th Cir, 31 Aug 2018)

Southwick J. wrote the Opinion of the Court. Willett J. wrote an opinion concurring dubitante. By affixing dubitante to his opinion, Judge Willett signified his doubt in the correctness of the court's decision rendered.

What Willett actually wrote:

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.

Reason magically deleted "To some observers," and reworked it to "Willett observed."

- - - - - - - - - - - - - - - - - - - -

Sotomayor concurs. The Court's "one-sided approach to qualified immunity," she wrote in a 2018 case, "transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment."

What opinion? What case?

https://www.supremecourt.gov/opinions/17pdf/17-467_bqm1.pdf

Kisela v Hughes, 17-467, 584 US ___ (2 Apr 2018) per curiam

Actually, Sotomayor dissents.

The Opinion in Kisela was issued per curiam; by the Court rather than any individual member of the Court. Justice Sotomayor issued a dissenting opinion, joined by Justice Ginsburg.

Sotomayor and Ginsburg disagreed with the majority Opinion of the Court. The majority Opinion of the Court says what the law is.

- - - - - - - - - - - - - - - - - - - -

Case in point: In 2017, the U.S. Court of Appeals for the 6th Circuit concluded that a Michigan police officer violated the Fourth Amendment when he shot and killed a fleeing suspect. But the court gave the officer qualified immunity anyway, because the situation did not perfectly match anything found in prior case law and therefore "controlling authority at the time of the events had not clearly established the rights we identify today."

What case in point?

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0292p-06.pdf

Latits v. Phillips 15-2306 (6th Cir, 27 Dec 2017) immunity

The name is Latits, Debbie Latits.

The Court concluded,

III. CONCLUSION.

We hold that Officer Phillips’s conduct was objectively unreasonable and in violation of the Fourth Amendment. Its unreasonableness, however, was not clearly established at the time of Officer Phillips’s actions, and he is therefore entitled to qualified immunity. For that reason, we must affirm.

Judge Stranch wrote the above in the Opinion of the Court.

Judge Clay wrote an Opinion concurring in part and dissenting in part.

CLAY, Circuit Judge, concurring in part and dissenting in part. The majority spends the bulk of its opinion explaining how Officer Phillips’ use of deadly force was objectively unreasonable, citing case upon case (many from before 2010, the year of the incident in question) to conclude that Officer Phillips violated Latits’ constitutional rights. In the final stretch, however, the majority abruptly shifts gears to hold that Latits’ constitutional rights were not clearly established and that Officer Phillips is therefore entitled to qualified immunity. In so holding, the majority has created a nearly impenetrable barrier for plaintiffs seeking to vindicate their rights against governmental officials. Because I believe that the majority opinion is contrary to governing case law, which clearly establishes that an officer may not shoot a fleeing suspect who poses no danger to others, I respectfully dissent.

Judge Clay dissented from the majority opinion on the specific part cited and quoted in Reason. His opinion was contrary to the opinion of the court. Judge Clay's argument was rejected by the court.

nolu chan  posted on  2018-11-20   12:45:53 ET  Reply   Trace   Private Reply  


#32. To: Deckard (#0)

3. Bennis v. Michigan (1996)

According to the Fifth Amendment, the government may not deprive any person of life, liberty, or property without due process of law. Yet thanks to the widespread practice known as civil asset forfeiture, law enforcement agencies get to seize cash, cars, houses, boats, and other property from people who have been neither charged nor convicted of any underlying crime, if they merely say they suspect the property was connected to a crime. To make matters worse, the Supreme Court has given a rubber stamp of approval to this unconstitutional state of affairs. According to Bennis v. Michigan (1996), "the innocent owner defense" is no shield against a state's civil asset forfeiture regime. Where's the due process in that?

Protected is the deprivation of any lawfully possessed property, without due process of law. If one robs a bank, one has no 5th amendment protection of his non-existent right to keep the loot.

When property is suspected of being contraband, it may be seized and taken into custody. Anyone may assert a claim that the property is theirs. They are afforded due process to obtain the property on a showing by the preponderance of the evidence (more likely than not) that they have a lawful right to the property.

The "innocent owner defense" creates no right to keep property. If someone robbed items from an art gallery and you purchased the stolen property from the thief, you have no legal right to keep the property. That you did not know the property was stolen is irrelevant to establishing who is the lawful owner of the property. The art gallery never lost the lawful right to the property. Saying you did not know it was stolen property is no shield from the law.

nolu chan  posted on  2018-11-20   12:47:15 ET  Reply   Trace   Private Reply  


#33. To: Deckard (#0)

4. Kelo v. City of New London (2005)

Speaking of the Fifth Amendment, it also forbids the government from wielding its powers to seize property through eminent domain for anything less than a "public use." Yet in Kelo v. City of New London (2005), the Supreme Court allowed a Connecticut municipality to bulldoze a working-class neighborhood so that private developers would have a blank slate on which to build a luxury hotel, a conference center, and various other upscale amenities. Public use? More like public power unleashed on behalf of private gain.

The Court upheld the land grab on the grounds that government officials are entitled to "broad latitude in determining what public needs justify the use of the takings power." In other words, the city of New London was permitted to define—and to enlarge—the scope of its own eminent domain authority, unencumbered by any constitutional limitations.

What the 5th Amendment actually says:

No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

There is no provision which forbids the government from wielding its powerss to seize property through eminent domain for anything less than a public use.

A person may be deprived of property with due process of law. Private property may be taken for public use with just compensation.

Imaginary provisions, not actually in the 5th Amendment, do not actually forbid anything.

One may believe the law should be changed, or the Constitution amended, but it is not accomplished by making shit up.

Black's Law Dictionary, 6th Ed.:

Public purpose. In the law of taxation, eminent domain, etc., this is a term of classification to distinguish the objects for which, according to settled usage, the government is to provide, from those which, by the like usage, are left to private interest, inclination, or liberality. The constitutional requirement that the purpose of any tax, police regulation, or particular exertion of the power of eminent domain shall be the convenience, safety, or welfare of the entire community and not the welfare of a specific individual or class of persons. "Public purpose" that will justify expenditure of public money generally means such an activity as will serve as benefit to community as a body and which at same time is directly related function of government. Pack v. Southern Bell Tel. & Tel. Co., 215 Tenn. 503, 387 S.W.2d 789, 794.

The term is synonymous with governmental purpose. As employed to denote the objects for which taxes may be levied, it has no relation to the urgency of the public need or to the extent of the public benefit which is to follow; the essential requisite being that a public service or use shall affect the inhabitants as a community, and not merely as individuals. A public purpose or public business has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within a given political division, as, for example, a state, the sovereign powers of which are exercised to promote such public purpose or public business.

- - - - - - - - - -

Public use. Eminent domain. The constitutional and statutory basis for taking property by eminent domain. For condemnation purposes, "public use" is one which confers some benefit or advantage to the public; it is not confined to actual use by public. It is measured in terms of right of public to use proposed facilities for which condemnation is sought and, as long as public has right of use, whether exercised by one or many members of public, a "public advantage" or "public benefit" accrues sufficient to constitute a public use. Montana Power Co. v. Bokma, Mont., 457 P.2d 769, 772, 773.

Public use, in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain, means a use concerning the whole community as distinguished from particular individuals. But each and every member of society need not be equally interested in such use, or be personally and directly affected by it; if the object is to satisfy a great public want or exigency, that is sufficient. Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186. The term may be said to mean public usefulness, utility, or advantage, or what is productive of general benefit. It may be limited to the inhabitants of a small or restricted locality, but must be in common, and not for a particular individual. The use must be a needful one for the public, which cannot be surrendered without obvious general loss and inconvenience. A "public use" for which land may be taken defies absolute definition for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation. Katz v. Brandon, 156 Conn. 521, 245 A.2d 579,586.

See also Condemnation; Eminent domain.

- - - - - - - - - -

Eminent domain. The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character. Housing Authority of Cherokee National of Oklahoma v. Langley, Okl., 555 P.2d 1025, 1028. Fifth Amendment, U.S. Constitution.

In the United States, the power of eminent domain is founded in both the federal (Fifth Amend.) and state constitutions. The Constitution limits the power to taking for a public purpose and prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken. The process of exercising the power of eminent domain is commonly referred to as "condemnation", or, "expropriation".

The right of eminent domain is the right of the state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good. Thus, in time of war or insurrection, the proper authorities may possess and hold any part of the territory of the state for the common safety; and in time of peace the legislature may authorize the appropriation of the same to public purposes, such as the opening of roads, construction of defenses, or providing channels for trade or travel. Eminent domain is the highest and most exact idea of property remaining in the government, or in the aggregate body of the people in their sovereign capacity. It gives a right to resume the possession of the property in the manner directed by the constitution and the laws of the state, whenever the public interest requires it.

See also Adequate compensation; Condemnation; Constructive taking; Damages; Expropriation; Fair market value; Just compensation; Larger parcel; Public use; Taking.

Expropriation. The term "expropriation" (used e.g. in Louisiana) is practically synonymous with the term "eminent domain". Tennessee Gas Transmission Co. v. Violet Trapping Co., La.App., 200 So.2d 428, 433.

Partial taking. The taking of part of an owner's property under the laws of eminent domain. Compensation must be based on damages or benefits to the remaining property, as well as the part taken. See Condemnation.

nolu chan  posted on  2018-11-20   12:48:16 ET  Reply   Trace   Private Reply  


#34. To: Deckard (#0)

5. Gonzales v. Raich (2005)

Article 1, Section 8 of the U.S. Constitution recognizes the congressional authority "to regulate commerce…among the several states." In Wickard v. Filburn (1942), the Supreme Court gave federal lawmakers a massive shot of steroids, enlarging their power in this area to include the regulation of wholly local activity if it has a "substantial economic effect" on the national market.

Six decades later, in Gonzales v. Raich (2005), the Court handed Congress even more power, upholding a federal ban on marijuana, even as applied to plants that were cultivated and consumed by patients for their own doctor-prescribed use in states where medical cannabis was perfectly legal. As Justice Clarence Thomas observed in dissent, "by holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

United States Constitution, Article 6:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Federal law prempts State law.

Marijuana is unlawful to possess is all 50 states. Marijuana is unlawful to prescribe as medicine in all 50 states.

Gonzales v. Raich 545 U.S. 1 (2005) (6-3) at 14:

In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U. S. C. § 812(c). This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of HEW “that marihuana be retained within schedule I at least until the completion of certain studies now underway.” Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1). These three factors, in varying gradations, are also used to categorize drugs in the other four schedules. For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use. § 812(b)(2). By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. §§823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 490 (2001).

At 27:

First, the fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses.

Justice Thomas filed a dissenting opinion. The majority opinion, the Opinion of the Court, said what the law actually is. The argument of Justice Thomas' dissent was rejected by thye Court.

One may want to change the law, or amend the Constitution, but bitching and citing comments dissenting from the majority opinion of the court does not change anything.

nolu chan  posted on  2018-11-20   12:49:28 ET  Reply   Trace   Private Reply  


#35. To: A K A Stone, Vicomte13 (#5)

The states created the federal government. They can dissolve it on a whim.

You are essentially correct. The people proved it in 1789. They did not proceed pursuant to the AoC. They proceeded pursuant to their sovereign authority to simply form a new union, even though the AoC stated it could not even be amended except upon unanimous consent of ALL the member states. The magic number 9 could not approve an amendment. From the New York delegation to the Constitutional Convention, all but Alexander Hamilton walked out, leaving Hamilton with no authority to act on behalf of the state of New York. NC refused to ratify until about 6 months after Washington was inaugurated. RI refused to so much as send a delegate to the Constitutional Convention, and refused to ratify until May 29, 1790; more than a year after Washington was inaugurated, following his election, 10 states participating.

If a majority of the states (the people, political communities, not state governments) decides to pull another Convention and change the form of government to whatever they damn please, based on whatever arbitrary number of states they decide, the courts will not decide the issue. RI and NC lacked the power to enforce the explicit terms of the AoC on the 11 states that decided to leave that union and form a new one without the required unanimous consent to amend the AoC. The eleven states that had ratified before Washington was inaugurated did not amend the AoC; they left that union and formed a new one with eleven states.

Texas v. White was a contrived case to justify the civil war use of force. It is the law of the current union. It purports to supplant the will of the people with the will of the union they created to serve them. If the people of a large group of states decide to leave and form a new union, the only way the words of the Court could be enforced is by military force. It would depend on what the military chose to do, and not on any court.

The people are the sovereigns. It was by their sovereign authority that the Constitution was created, not by state governments. By their sovereign power, the current form of government can be replaced. The sovereign people are not servants of the Constitution they created, nor of the government created pursuant (or not) to the Constitution to serve the people.

For some back and forth arguments about who created the states, and state sovereignty:

[1] Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable—a most sacred right—a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of their territory as they inhabit.

- - -

[2] What is the particular sacredness of a State? I speak not of that position which is given to a State in and by the Constitution of the United States, for that all of us agree to---we abide by; but that position assumed, that a State can carry with it out of the Union that which it holds in sacredness by virtue of its connection with the Union. I am speaking of that assumed right of a State, as a primary principle, that the Constitution should rule all that is less than itself, and ruin all that is bigger than itself. But, I ask, wherein does consist that right? If a State, in one instance, and a county in another, should be equal in extent of territory, and equal in the number of people, wherein is that State any better than the county?

- - -

[3] The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States.

- - -

[4] What is a confederation of states? By a confederacy, we mean a group of sovereign states which come together of their own free will and, in virtue of their sovereignty, create a collective entity. In doing so, they assign selective sovereign rights to the national body that will allow it to safeguard the existence of the joint union.

This theoretical definition does not apply in practice, at least not without some alterations, to any existing confederation of states in the world today. It applies the least to the American Union of States. Most of these individual states never possessed any sovereignty whatsoever. They were gradually brought into the framework of the union as a whole. Therefore. the various states of the American Union constitute, in most instances smaller or larger territories that were formed for technical administrative reasons and their borders were frequently drawn with a ruler. These states never possessed any previous sovereignty of their own because that would have been impossible. These states did not come together to create the Union, but it was the Union that created these so-called states. The extensive rights of independence that were relinquishcd, or rather rights that were granted, to the different territories are in harmony with the whole character of this confederation of states and with the vastness of its area and overall size which is almost as large as a continent. So, in referring to the states of the American Union, one cannot speak of their state soverignty, but only of their constitutionally guaranteed rights, which we could more accurately designate as privileges.

- - -

[5] All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.

- - -

[1] Congressman Lincoln on January 12, 1848, arguing the unlawfulness of the War with Mexico.

[2] President Lincoln's message of July 4, 1861 to the Special Session of Congress.

[3] President Lincoln's message of July 4, 1861 to the Special Session of Congress.

[4] Adolf Hitler, Mein Kampf, Uncensored Version, The Ford Translation, ISBN 978-0-9845361-3-9, p. 460

[5] President Ronald Reagan, First Inaugural Address, Tuesday, January 20, 1981

nolu chan  posted on  2018-11-20   12:54:12 ET  Reply   Trace   Private Reply  


#36. To: Vicomte13, A K A Stone (#4)

In truth, the British Crown created the first 13 states, who created the national government for the purpose of winning their independence, so the national government and the state government, as independent entities, were both born at the same instant, and it was the government of the United States that declared independence from Great Britain, not the individual states.

The Crown created colonies. The British Crown did not create all of the first 13 colonies. They either purchased or conquered and took a large chunk from the Dutch.

The colonies declared their independence and formed a Firm League of Friendship for their self defense to ensure their continued independence.

The Articles of Confederation of 1777, Article 3:

ART. III.

The said states hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The colonies created a Continental Congress which was not a national government. It was a firm league of friendship.

Even much later, the Constitutional Convention rejected all usage of the word national, insisting upon federal.

In May-June 1776, there was no United States government when Virginia declared its independence from Britain, adopted its Declaration of Rights, and adopted its Constitution, all before the adoption of the Declaration of Independence. It was not until 1777 that a federal government of sorts was formed, with no Executive or Judicial branch. Minus an Executive branch, the Legislature had no enforcement branch.

Just about nobody could name the President of the United States in 1776, or anytime prior to March 4, 1789 when George Washington was inaugurated.

https://www.gilderlehrman.org/content/articles-confederation-1777

A day after appointing a committee to write the Declaration of Independence, the Second Continental Congress named another committee to write the Articles of Confederation. The members worked from June 1776 until November 1777, when they sent a draft to the states for ratification. On December 16, 1777, Virginia became the first state to ratify the Articles of Confederation. Maryland was the last, holding out until March 1, 1781.

More of a treaty—or a "firm league of friendship"—than a constitution, the Articles of Confederation in no way infringed upon the sovereignty of the original thirteen states. Each state held "its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." The Congress, the primary organ of the new national government, only had the power to declare war, appoint military officers, sign treaties, make alliances, appoint foreign ambassadors, and manage relations with the American Indians. All states were represented equally in Congress, and nine of the thirteen states had to approve a bill before it became law. Amendments required the approval of all the states.

The Articles of Confederation represented an attempt to balance the sovereignty of the states with an effective national government. Under the Articles, the states, not Congress, had the power to tax. Congress could raise money only by asking the states for funds, borrowing from foreign governments, and selling western lands. In addition, Congress could not draft soldiers or regulate trade. There was no provision for national courts or a chief executive.

Importantly, the Articles did not establish a genuinely republican government. Power was concentrated in a single assembly, rather than being divided, as in the state governments, into separate houses and branches. Further, members of the Confederation Congress were selected by state governments, not by the people.

The Articles served as the nation’s plan of government until the US Constitution was ratified in 1788.

https://founders.archives.gov/documents/Jefferson/01-01-02-0161-0001

On 10 May 1776, four days before Jefferson arrived in Philadelphia, Congress adopted John Adams’ resolution recommending that the colonies assume all the powers of government. On 15 May the Virginia Convention adopted its famous resolution calling for independence and appointed a committee to draft a plan of government. Jefferson, who had already given much thought to this urgent problem, wrote on 16 May to Thomas Nelson, delicately suggesting that the delegates in Congress be recalled to Virginia to assist in the work of framing a new government, which he described as “the whole object of the present controversy; for should a bad government be instituted for us in future it had been as well to have accepted at first the bad one offered to us from beyond the water without the risk and expence of contest.” It is difficult to overestimate the importance of this statement about “the whole object” and its relation to Jefferson’s drafting of the proposed constitution. The feeling and purpose expressed here must be the basis for an understanding of Jefferson’s legal reforms in Virginia by which he sought to alter the aristocratic structure of society; of his misunderstood administration as governor; of his disappointment over the frame of government adopted by the Convention; of his efforts to reform the constitution of 1776 (see Notes on the State of Virginia, Query xiii; his “Fundamental Constitution” of 1783, and “Notes for a Constitution” in 1794). Jefferson, quite properly, always regarded the Constitution of 1776 as merely an act of legislature “subject to be changed by subsequent legislatures, possessing equal powers with themselves” and as an act which should be superseded and “rendered permanent by a power superior to that of the ordinary legislature”; that is, by the sovereign people.

http://avalon.law.yale.edu/18th_century/const02.asp

PREAMBLE AND RESOLUTION OF THE VIRGINIA CONVENTION, MAY 15, 1776, INSTRUCTING THE VIRGINIA DELEGATES IN THE CONTINENTAL CONGRESS TO "PROPOSE TO THAT RESPECTABLE BODY TO DECLARE THE UNITED COLONIES FREE AND INDEPENDENT STATES"

Forasmuch as all the endeavours of the United Colonies, by the most decent representations and petitions to the King and Parliament of Great Britain, to restore peace and security to America under the British Government, and a reunion with that people upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive Administration, increased insult, oppression, and a vigorous attempt to effect our total destruction:-By a late act all these Colonies are declared to be in rebellion, and out of the protection of the British Crown, our properties subjected to confiscation, our people, when captivated, compelled to join in the murder and plunder of their relations and countermen, and all former rapine and oppression of Americans declared legal and just; fleets and armies are raised, and the aid of foreign troops engaged to assist these destructive purposes; the King's representative in this Colony bath not only withheld all the powers of Government from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves by every artifice to resort to him, and training and employing them against their masters. In this state of extreme danger, we have no alternative left but an abject submission to the will of those overbearing tyrants, or a total separation from the Crown and Government of Great Britain, uniting and exerting the strength of all America for defence, and forming alliances with foreign Powers for commerce and aid in war:-Wherefore, appealing to the Searcher of hearts for the sincerity of former declarations expressing our desire to preserve the connection with that nation, and that we are driven from that inclination by their wicked councils, and the eternal law of self-preservation:

Resolved, unanimously, That the Delegates appointed to represent this Colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain; and that they give the assent of this Colony to such declaration, and to whatever measures may be thought proper and necessary by the Congress for forming foreign alliances, and a Confederation of the Colonies, at such time and in the manner as to them shall seem best: Provided, That the power of forming Government for, and the regulations of the internal concerns of each Colony, be left to the respective Colonial Legislatures.

Resolved, unanimously, That a Committee be appointed to prepare a Declaration of Rights, and such a plan of Government as will be most likely to maintain peace and order in this Colony, and secure substantial and equal liberty to the people.

And a Committee was appointed of the following gentlemen: Mr. Archibald Cary, Mr. Meriwether Smith, Mr. Mercer, Mr. Henry Lee, Mr. Treasurer, Mr. Henry, Mr. Dandridge, Mr. Edmund Randolph, Mr. Gilmer, Mr. Bland, Mr. Digges, Mr. Carrington, Mr. Thomas Ludwell Lee, Mr. Cabell, Mr. Jones, Mr. Blair, Mr. Fleming, Mr. Tazewell, Mr. Richard Cary, Mr. Bullitt, Mr. Watts, Mr. Banister, Mr. Page, Mr. Starke, Mr. David Mason, Mr. Adams, Mr. Read, and Mr. Thomas Lewis. (1)

(1) Quoted from Force, Peter. American Archives, 4th series, Vol. VI, p. 1523.

Source:
Documents Illustrative of the Formation of the Union of the American States.
Government Printing Office, 1927.
House Document No. 398.

http://www.virginiamemory.com/docs/VADeclaration.pdf

http://avalon.law.yale.edu/18th_century/const02.asp [text]

http://edu.lva.virginia.gov/dbva/files/original/ac03cfe7745247f5a0aa02a3beec05bd.jpg [image]

https://www.loc.gov/resource/rbpe.17802200 [image]

The Virginia Declaration of Rights was adopted June 12, 1776.

Virginia Declaration of Rights

I That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

II That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

III That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.

IV That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge be hereditary.

V That the legislative and executive powers of the state should be separate and distinct from the judicative; and, that the members of the two first may be restrained from oppression by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.

VI That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.

VII That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised.

VIII That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.

IX That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

X That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

XI That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.

XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.

XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

XIV That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.

XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

XVI That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Adopted unanimously June 12, 1776 Virginia Convention of Delegates drafted by Mr. George Mason

http://press-pubs.uchicago.edu/founders/documents/v1ch1s4.html

The Virginia Constitution was adopted June 29, 1776.

Virginia Constitution

29 June 1776 Jefferson Papers 1:377--83

In a General Convention.

Begun and holden at the Capitol, in the City of Williamsburg, on Monday the sixth day of May, one thousand seven hundred and seventy six, and continued, by adjournments to the day of June following:

A CONSTITUTION, OR FORM OF GOVERNMENT,

agreed to and resolved upon by the Delegates and Representatives of the several Counties and Corporations of Virginia.

Whereas George the Third, King of Great Britain and Ireland, and Elector of Hanover, heretofore intrusted with the exercise of the Kingly Office in this Government, hath endeavoured to pervert the same into a detestable and insupportable Tyranny; by putting his negative on laws the most wholesome and necessary for the publick good;

by denying his Governours permission to pass Laws of immediate and pressing importance, unless suspended in their operation for his assent, and, when so suspended, neglecting to attend to them for many Years;

by refusing to pass certain other laws, unless the persons to be benefited by them would relinquish the inestimable right of representation in the legislature;

by dissolving legislative assemblies repeatedly and continually, for opposing with manly firmness his invasions of the rights of the people;

when dissolved, by refusing to call others for a long space of time, thereby leaving the political system without any legislative head;

by endeavouring to prevent the population of our Country, and, for that purpose, obstructing the laws for the naturalization of foreigners;

by keeping among us, in times of peace, standing Armies and Ships of war;

by affecting to render the Military independent of, and superiour to, the civil power;

by combining with others to subject us to a foreign Jurisdiction, giving his assent to their pretended Acts of Legislation;

for quartering large bodies of armed troops among us;

for cutting off our Trade with all parts of the World;

for imposing Taxes on us without our Consent;

for depriving us of the Benefits of Trial by Jury;

for transporting us beyond Seas, to be tried for pretended Offences;

for suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all Cases whatsoever;

by plundering our Seas, ravaging our Coasts, burning our Towns, and destroying the lives of our People;

by inciting insurrections of our fellow Subjects, with the allurements of forfeiture and confiscation;

by prompting our Negroes to rise in Arms among us, those very negroes whom, by an inhuman use of his negative, he hath refused us permission to exclude by Law;

by endeavouring to bring on the inhabitants of our Frontiers the merciless Indian savages, whose known rule of Warfare is an undistinguished Destruction of all Ages, Sexes, and Conditions of Existance;

by transporting, at this time, a large Army of foreign Mercenaries, to compleat the Works of Death, desolation, and Tyranny, already begun with circumstances of Cruelty and Perfidy unworthy the head of a civilized Nation;

by answering our repeated Petitions for Redress with a Repetition of Injuries;

and finally, by abandoning the Helm of Government, and declaring us out of his Allegiance and Protection;

By which several Acts of Misrule, the Government of this Country, as formerly exercised under the Crown of Great Britain, is totally dissolved; We therefore, the Delegates and Representatives of the good People of Virginia, having maturely considered the Premises, and viewing with great concern the deplorable condition to which this once happy Country must be reduced, unless some regular adequate Mode of civil Polity is speedily adopted, and in Compliance with a Recommendation of the General Congress, do ordain and declare the future Form of Government of Virginia to be as followeth:

[snip]

Before the end of June 1776, Virginia had resolved to be a free and independent state, broke all ties with Britain, adopted a Declaration of Rights, and adopted a Constitution forming a new government.

The vote to approve the Declaration of Independence occurred on July 2, 1776.

That was just playing catchup with the Free and Independent state of Virginia.

nolu chan  posted on  2018-11-20   12:59:58 ET  Reply   Trace   Private Reply  


#37. To: nolu chan (#36)

SCOTUS precedent in action.


hondo68  posted on  2018-11-20   15:31:20 ET  Reply   Trace   Private Reply  


#38. To: hondo68 (#37)

hondo in action: double jeopardy!

nolu chan  posted on  2018-11-20   18:49:18 ET  Reply   Trace   Private Reply  


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