About Me

My photo
Lift your lamp beside the golden door, Break not the golden rule, avoid well the golden calf, know; not all that glitters is gold, and laissez faire et laissez passer [let do and let pass] but as a shining sentinel, hesitate not to ring the bell, defend the gates, and man the wall

Saturday, January 30, 2010

LAW AND DISORDER

__________________________________________________________________________________
 
A Patriot's History of The United States pg162-164
Judiciary Waterloo for Minimalist Government 
 
While the Federalists in Congress and the bureaucracy ran before this flood of Jeffersonian
democrats, one branch of government defiantly stood its ground. The lifetime appointees to the
judiciary branch—the United States federal courts and the Supreme Court—remained staunchly
Federalist. Jefferson thus faced a choice. He could let the judges alone and wait for age and attrition
to ultimately create a Republican judiciary, or he could adopt a more aggressive policy. He chose
the latter course, with mixed results.
Much of Jefferson’s vendetta against Federalist judges came from bitterness over John Adams’s
last two years in office. Federalist judges had unfairly convicted and sentenced Republican editors
under the Sedition Act.
Adams and the lame-duck Congress added insult to injury by passing a new
Judiciary Act
and appointing a whopping sixty new Federalist judges (including Chief Justice John
Marshall) during Adams’s last sixty days in office. Jefferson now sought to legally balance the
federal courts.
The Virginian might have adopted an even more incendiary policy, because his most extreme
advisers advocated repealing all prior judiciary acts, clearing the courts of all Federalist judges, and
appointing all Republicans to take their place. Instead, the administration wisely chose to remove
only the midnight judges and a select few sitting judges. With the Amendatory Act, the new
Republican Congress repealed Adams’s 1801 Judiciary Act
, and eliminated thirty of Adams’s
forty-seven new justices of the peace (including a fellow named William Marbury) and three
federal appeals court judgeships. Attempts to impeach several Federalist judges, including Supreme
Court justice Samuel Chase, met with mixed results. Chase engaged in arguably unprofessional
conduct in several of the Sedition Act cases, but the attempt to remove him proved so partisan and
unprofessional that Republican moderates joined the minority Federalists to acquit Chase.
Congressional Republicans won a skirmish with the Amendatory Act, but the Federalists, under
Supreme Court chief justice John Marshall, ultimately won the war. This victory came thanks to a
subtle and complex decision in a case known as Marbury v. Madison (1803), and stemmed from the appointment of William Marbury as a midnight judge. Adams had commissionied Marbury as a justice of the peace, but Marbury never received the commission, and when he inquired about it, he
was told by the secretary of state’s office that it had vanished. Marbury then sued the secretary of
state James Madison in a brief he filed before the United States Supreme Court itself.
 
Chief Justice Marshall wrote an 1803 opinion in Marbury that brilliantly avoided conflict with
Jefferson while simultaneously setting a precedent for judicial review—the prerogative of the Supreme Court, not the executive or legislative branches—to decide the constitutionality of federal laws.
There is nothing in the U.S. Constitution that grants the Supreme Court this great power, and the fact that we accept it today as a given has grown from the precedent of John Marshall’s
landmark decision. Marshall sacrificed his fellow Federalist Marbury for the greater cause of a
strong centralized judiciary. He and fellow justices ruled the Supreme Court could not order
Marbury commissioned because they lacked jurisdiction in the case, then shrewdly continued to
make a ruling anyway. The Supreme Court lacked jurisdiction, Marshall ruled, because a 1789
federal law granting such jurisdiction was unconstitutional; the case should have originated in a
lower court.
While the ruling is abstruse [difficult to understand], its aim and result were not. The Supreme Court, said Marshall, was the final arbiter of the constitutionality of federal law. In Fletcher v. Peck (1811), Marshall’s court would claim the same national authority over state law. Chief Justice Marshall thus paved the first segment of a long road toward nationalism through judicial review. In the
Aaron Burr treason trial (1807), when the chief justice personally issued a subpoena to President Jefferson, it sent a powerful message to all future presidents that no person is above the law.
Equally as important as judicial review, however, Marshall’s Court consistently ruled in favor of capitalism, free enterprise, and open markets. Confirming the sanctity of private contracts, in
February 1819 the Supreme Court, in Dartmouth College v. Woodward, ruled that a corporate charter (for Dartmouth College) was indeed a contract that could not be violated at will by the state legislature. This supported a similar ruling in Sturges v. Crowninshield: contracts are contracts, and are not subject to arbitrary revision after the fact. Some of the Marshall Court’s rulings expanded federal power, no doubt. But at the same time, they unleashed market forces to race ahead of regulation. For example, five years after Dartmouth, the Supreme Court held that only the federal government could limit interstate commerce. The case, Gibbons v. Ogden, involved efforts by the famous Cornelius Vanderbilt, who ran a cheap water-taxi service from New York to New Jersey for a steamboat operator named Thomas Gibbons. Their service competed against a New York firm that claimed a monopoly on the Hudson River. The commodore boldly carried passengers in defiance of the claim, even offering to transport them on his People’s Line for nothing if they agreed to eat two dollars’ worth of food on the trip. Flying a flag reading new jersey must be free,
Vanderbilt demonstrated his proconsumer, low-price projects over the next thirty years and, in the
process, won the case.97
Lower courts took the lead from Marshall’s rulings. For thirty years American courts would favor developmental rights over pure or pristine property rights. This was especially explicit in the so called mill acts, wherein state courts affirmed the primacy of privately constructed mills that required the owners to dam up rivers, thus eroding or destroying some of the property of farmers having land adjacent to the same river. Emphasizing the public good brought by the individual building the mill, the courts tended to side with the person developing property as opposed to one keeping it intact.98 Legal historian James Willard Hurst has labeled this propensity toward development “release of energy,” a term that aptly captures the courts’ collective goal: to unleash American entrepreneurs to serve greater numbers of people. As policy it pleased neither the hardcore antistatists, who complained that it (rightly) put government authority on the side of some property owners as opposed to others, nor militant socialists, who hated all private property anyway and called for heavy taxation as a way to spur development.99
A final pair of Marshall-like rulings came from Roger B. Taney, a Marylander named chief justice
when Marshall died in 1835. Having established the sanctity of contracts, the primacy of
development, and the authority of the federal government over interstate trade, the Court turned to
issues of competition. In Charles River Bridge v. Warren Bridge, the Charles River Bridge Company claimed its charter implicitly gave it a monopoly over bridge traffic, and thus sued Warren Bridge Company which sought to erect a competing crossing. Although many of the early colonial charters indeed had implied a monopoly power, the Court took a giant step away from those notions by ruling that monopoly powers did not exist unless they were expressly stated and delegated in the charter. This opened the floodgates of competition, for no company could hide behind its state-originated charters any longer. Then, in 1839, in Bank of Augusta v. Earle, a debtor from Alabama, seeking to avoid repaying his debts to the Bank of Augusta in Georgia, claimed that the bank had no jurisdiction in Alabama. Appreciating the implications for stifling all interstate trade with a ruling against the bank, the Court held that corporations could conduct business under laws of comity, or mutual good faith, across state lines unless explicitly prohibited by the legislatures of the states involved.100 Again the Court opened the floodgates of competition by forcing companies to compete across state boundaries, not just within them. Taken together, these cases “established the framework that allowed entrepreneurs in America to flourish.”101
__________________________________________________________________________________

   
__________________________________________________________________________________

The Espionage Act of 1917

Schenck v. United States (1919
-A United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to freedom of speech against the draft [encouraging illegal draft dodging] during World War I

Oliver Wendell Holmes Jr.
 
In a series of opinions during and after the First World War, he held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege to do harm, except in cases where the expression, in the circumstances in which it was uttered, posed a "clear and present danger" of causing some harm that the legislature had properly forbidden.

Holmes announced this doctrine for a unanimous Court, famously declaring that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic."
The decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to freedom of speech with the intention to obstruct the draft, during World War I
"Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point."
Draft dodging being against the law, and encouraging others to break the law being against the law, it stands to reason the clear incitement to draft dodging is illegal; however, one should read the pamphlet itself to decide whether it warranted that judgement
 
__________________________________________________________________________________


The case dealt with the prosecution of a woman for aiding the Communist Labor Party, an organization that was promoting the violent overthrow of the government
In their opinion and test to uphold the conviction, they expanded the definition of "clear and present danger" to include the condition that the "evil apprehended is so imminent that it may befall before there is opportunity for full discussion." In their concurring opinion, they wrote:
SUPREME COURT OF THE UNITED STATES
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears. . . Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . ."
Scholars have lauded Brandeis's opinion "as perhaps the greatest defense of freedom of speech ever written by a member of the high court." -Anthony Lewis, legal historian [wiki]
"[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature." [Case Summary]
"Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement..." -[combia.edu]
__________________________________________________________________________________

FAIR USE
Title 17 U.S.C. section 107 of the US Copyright Law
[JULY 30, 1947]
 
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

__________________________________________________________________________________

McDonald v. Chicago [pdf]
(The Incorporation of the Second Amendment)
A landmark decision of the Supreme Court of the United States that determined that the Second Amendment applies to the individual states; the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.

  
__________________________________________________________________________________

 http://en.wikipedia.org/wiki/Nixon_v._Fitzgerald

 _________________________________________________________________________________

Can non-US citizens contribute to campaigns?
Foreign nationals are prohibited from making any contributions or expenditures in connection with any election in the U.S. Please note, however, that "green card" holders (i.e., individuals lawfully admitted for permanent residence in the U.S.) are not considered foreign nationals and, as a result, may contribute. For additional information, consult our "Foreign Nationals" brochure. 
-------------------------------------------------------------------------------
Obama’s Campaign Manager Jim Messina Admits Taking Contributions From Outside The United States in the following video at the 3:29 mark: “Globally we raised more than 86-million dollarsmore than $47 million for Obama for America and more than $38 million for the DNC.”  
It seems unlikely that he is only referring to US Citizens living abroad and those with dual citizenship who are not prohibited from contributing. Even if a large swath of the "Global" contributions are from such people, a single foreign contribution qualifies as breaking the law [and that would include illegal immigrants living in the US, as they are not citizens].

http://www.youtube.com/watch?v=hlypjw9i7Vg



Credit to: TalkStright, who posted this on tumblr
__________________________________________________________________________________

McCain-Feingold 
Citizens United v. Federal Election Commission Opinion [pdf]

 


__________________________________________________________________________________

FINANCIAL BILL HR 4173 Dodd–Frank Wall Street Reform and Consumer Protection Act
___


___

2300 page bill [in its final form]
___

1. Does nothing about Fannie and Freddie; no regulation on them

2. Creates "Too Big To Fail" Protection Class: Sec 113; A Financial Stability Oversight Committee will choose the firms deemed "too big to fail"

3. Seizure of private property "without meaningful judicial review" Secretary of Treasury can order the seizure of any financial firm "In danger of default" that could hurt the country's economy

4. Creates a Bureau of Consumer Financial Protection [BCFP]: Which will have broad powers to limit what financial products and services can be offered to consumers

[Reduces options, limits credit] [Track transactions] Section 102 defines "A nonbank financial company [as] substantially engaged in activities in the United States that are financial in nature"

Obama Signed, July 21st 2010
___

Version as of April 22nd 2010 -
http://www.heritage.org/research/reports/2010/04/senator-dodds-regulation-plan-14-fatal-flaws

Financial Regulation Reform (Bill that Passed the Senate) -Heritage Foundation-

Section 102(B)(ii) of the bill defines a “nonbank financial company”” as a company “substantially engaged in activities … that are financial in nature.” The phrase “financial in nature” is defined in existing law quite broadly. According to former Treasury official Gregory Zerzan, it includes things such as “holding assets of others in trust, investing in securities … or even leasing real estate and offering certain consulting services.”[5] As a result, a broad swath of private industry may find itself ensnared in the financial regulatory net. As Zerzan explains: “An airplane manufacturer that holds customer down payments for future delivery, a large home improvement chain that invests its profits as part of a plan to increase revenues, and an energy firm that makes markets in derivatives are all engaged in ‘financial activities’ and potentially subject to systemic risk regulation.”

____________________________________________________________
 
Arizona Law (Highlighted Text Transcript) 
 (Audio Book by Glenn Beck) PDF


__________________________________________________________________________________

International Law 
  
__________________________________________________________________________________


TORTURE
 

The Daily show is the best place to start a debate about morality and Torture.


Is it 1- Moral, 2- Legal and, 3- Effective, Two is settled its legal.

Enhanced Interrogation Techniques are only used when there is reason for exception to the Moral code, it was only used on less than 4 guys specifically to stop attacks such as the one (that was) on LA towers. [That the plan, in hindsight, was supposedly abandoned upon his capture means nothing to the perspective of danger at the time]


I conclude its Immoral Not To use them in such instances.
And just as Immoral to disingenuously attack the usage or legality out of context.
We learned of the Plan to Attack The Towers in LA, so effectiveness Check; although now the Terrorists can train to resist, knowing what techniques we use so they'll all need to be thrown out.
__________________________________________________________________________________
 
FDA Legal Brief: No Right To Buy Food of your Choice
   
_________________________________________________________________________________
   
Certificate of Necessity Laws for Moving Companies, destroy competition

__________________________________________________________________________________




______________________________
via The Blaze -
IS THE SOROS-SPONSORED ‘AGENDA 21’ A HIDDEN PLAN FOR WORLD GOVERNMENT? (YES, ONLY IT IS NOT HIDDEN) http://www.theblaze.com/stories/is-the-soros-sponsored-agenda-21-a-hidden-plan-for-world-government-yes-only-it-is-not-hidden/
 
DOES THE NEW ‘WHITE HOUSE RURAL COUNCIL’ = UN’S AGENDA 21?  http://www.theblaze.com/stories/does-the-new-white-house-rural-council-uns-agenda-21/

AGENDA 21 UPDATE: FAMILY FARMS ARE UNDER ATTACK http://www.theblaze.com/stories/agenda-21-update-family-farms-are-under-attack/


__________________________________________________________________________________

SB 783 Re: ADA Lawsuit Abuse
  

An act to add Sections 55.4 and 55.41 to the Civil Code, and to amend Section 4452 of the Government Code, relating to special access, and declaring the urgency thereof, to take effect immediately.
 
 
 
__________________________________________________________________________________
    
Time Place And Manner Restrictions To Free Speech Rights 
Limits that government can impose on the occasion, location, and type of individual expression in some circumstances.
The First Amendment to the U.S. Constitution guarantees Freedom of Speech. This guarantee generally safeguards the right of individuals to express themselves without governmental restraint. Nevertheless, the Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever. Instead, the U.S. Supreme Court has repeatedly ruled that state and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. Time, place, and manner (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice.
The Supreme Court has developed a four-part analysis to evaluate the constitutionality of TPM restrictions. To pass muster under the First Amendment, TPM restrictions must be contentneutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. Application of this analysis varies in accordance with the circumstances of each case.
__________________________________________________________________________________

Takings Law



TAKINGS LAW, In Plain English by Christopher J. Duerksen & Richard J. Roddewig

Regulatory Taking - Wikipedia

Takings Law Made Hard by Richard A. Epstein (2010)

__________________________________________________________________________________

Lochner v. New York
Lochner vs. New York, 198 U.S. 45 (1905), was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. By a 5-4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." Justice Rufus Peckham wrote for the majority, while Justices John Marshall Harlan and Oliver Wendell Holmes, Jr. filed dissents.
__________________________________________________________________________________

No comments:

Post a Comment

Sociable