Tag Archives: Constitutional Law

A Brief History of the Law of Personal Privacy and Bodily Integrity, by Andrew P. Napolitano

Posted on October 7, 2021 | Leave a comment

The law of mandatory vaccinations is not settled by a 1905 Supreme Court ruling. From Andrew P. Napolitano at lewrockwell.com:

As more governors issue so-called mandates requiring municipal and state employers, as well as private employers and public accommodations, to require their employees and patrons to be vaccinated against COVID-19, they are being challenged by arguments based on personal privacy and bodily integrity.

The former argues that personal medical decisions are protected by the right to privacy, which is a natural right that supersedes governmental needs. The latter argues that since we each own our bodies, we can decide what goes into them. Both the personal privacy and the bodily integrity arguments recognize that the government can only trump fundamental rights if it can prove fault at a jury trial.

Thus, a case where an infected and contagious person is intentionally infecting healthy folks can and should result in an arrest and prosecution for aggravated assault at which the state would need to prove its case. If it did, the convicted defendant would be incarcerated and isolated for the duration of her sentence. But that does not animate the government today.

Today, the government — local, state and federal — is attempting to compel healthy people to be vaccinated against their wills. All three levels of government are attempting to do this by command, not by legislation.

The favorite U.S. Supreme Court case that the pro-mandate folks cite is the 116-year-old Jacobson v. Massachusetts. There, in the era before the court recognized personal privacy or bodily integrity as constitutionally protected, it upheld a Massachusetts statute requiring inoculation for smallpox.

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Don’t expect Mike Pence to save us on January 6, by Carol Brown

Posted on January 3, 2021 | 1 comment

A bearish for President Trump take on January 6. From Carol Brown at americanthinker.com:

There’s been a lot written about the power Vice President Pence has to turn the stolen election around on January 6. Many commentators on various sites (including AT) have weighed in, some expressing hope, while other have expressed doubt Pence would do the right thing.

But it appears all of this is moot, as Bill Jacobson, founder of Legal Insurrection writes:

A claim has circulated widely in the past few days that Vice President Mike Pence, as President of the Senate, has the power and discretion to reject certifications. If Pence had such power and chose to exercise it, it would be over, but he doesn’t.

Jacobson cites relevant language from the Constitution (Article II, Section I, after the 12th Amendment) to support his assertion and then summarizes.

Note the words. “Shall … open all the Certificates” and “the Votes shall then be counted.” Shall is mandatory, there is no discretion. The certificates must be opened by Pence, and the votes must be counted (it’s unclear who does the counting, but the votes must be counted regardless). No Vice President (whether Mike Pence, Al Gore or future VP Kamala Harris) performing the function of opening the votes has discretion to reject votes. No Vice President has authority to accept votes presented through some extra-constitutional other process.

There is an interesting legal question of what would happen if a state authority presented conflicting votes — for example the legislature certified one set of electors but the executive branch certified a different set — but that has not happened here. No state authority has certified more than one set of electors. A bunch of legislators acting on their own getting together outside the constitutional certification process to announce electors is not presented for counting any more than if I got together with some friends and we delivered an envelope to Pence with our chosen slate of electors. Maybe if legislatures (not legislators) had so acted, we would have a legal conundrum, but that has not happened.

The Congressional legislation provides a mechanism for objections to be raised and resolved. Neither the constitution nor the legislation makes the Vice President king for a day.

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Posted in Civil Liberties, Collapse, Crime, Cronyism, Government, Law, Politics

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Will the Supreme Court’s Conservatives Extinct Themselves? by Robert Gore

Posted on December 11, 2020 | 32 comments

Trump, or extinction by irrelevance?

Update: The Supreme Court declined to hear the Texas suit late Friday afternoon.

The state of Texas has filed suit against four states where the presidential election results are in dispute: Michigan, Wisconsin, Georgia, and Pennsylvania. The Constitution gives the Supreme Court original jurisdiction for suits between states (Article III, Section 2). The court ordered the four states to submit their responses yesterday. A number of states have filed amicus, or friend of the court, briefs both in support of and in opposition to Texas.

Suppose the court either refuses to take the case or it rules against Texas. Suppose also that the Democrats win the two contested Georgia Senate races January 5. With the apparent cheating demonstrated in the presidential election and Georgia’s RINO governor and secretary of state, nobody should assume the runoffs will be fair or that challenges to an unfair election will have any chance of success.

Biden would be president and Democrats would control the House of Representatives and the Senate (it would be 50-50, but vice president Harris would break ties). They could and probably would carry out their plans to expand the Supreme Court and “pack” it with a unstoppable liberal majority. In either refusing to hear the Texas suit or accepting the suit but ruling against Texas, the Supreme Court’s five conservative justices will have contributed to their own demises as consequential jurists—collective judicial suicide.

On the other hand, the court could take the case and rule in favor of Texas. It helps that Texas has a strong legal case. Article I, Section 4 states: The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be proscribed in each State by the Legislature thereof; but the Congress at any time may at any time by Law make or alter such regulations, except to the Places of chusing Senators. This clause apparently has been extended to presidential elections, which are held concurrently with Congressional elections.

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What the Supreme Court Got Right in Its Indian Tribe Ruling, by Ryan McMaken

Posted on July 13, 2020 | Leave a comment

No, the Supreme Court didn’t just give half of Oklahoma to an Indian tribe. From Ryan McMaken at mises.org:

The US Supreme Court on Thursday ruled that Jimcy McGirt was wrongfully convicted in an Oklahoma state court of three serious sexual offenses. McGirt argued that his trial should have taken place in federal court because he is a member of the Seminole Nation and the crimes in question took place on Indian tribal lands, which are not subject to state law in certain cases.

The court agreed with McGirt and it recognized these tribal lands as potentially constituting much of the eastern half of Oklahoma, including parts of Tulsa. The implications of the ruling are sizable, although not as sizable as the media is making them out to be.

The media is now filled with headlines like “Court Rules That about Half of Oklahoma Is Native American Land” and “Court Rules That Large Swath of Oklahoma Belongs to Indian Reservation.”

Headlines like these are likely to conjure up images of non-Indians being rounded up and kicked off reservation lands, homes expropriated, and worse.

But Thursday’s ruling doesn’t even come close to handing over control of private property in eastern Oklahoma to a tribal council. In fact, the court’s ruling explicitly states up front that the decision is narrowly applied to matters of jurisdiction in criminal law.

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Freedom in a Time of Madness, by Andrew P. Napolitano

Posted on March 19, 2020 | Leave a comment

If the totalitarian measures being enacted at the local, state, and federal level are allowed to stand, the Constitution and the concept of freedom itself should be cremated and given a mournful burial. From Andrew P. Napolitano at lewrockwell.com:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.” — Ex parte Milligan, U.S. Supreme Court (1866)

During the Civil War, when President Abraham Lincoln thought it expedient to silence those in the northern states who challenged his wartime decisions by incarcerating them in military prisons in the name of public safety, he was rebuked by a unanimous Supreme Court. The essence of the rebuke is that no matter the state of difficulties — whether war or pestilence — the Constitution protects our natural rights, and its provisions are to be upheld when they pinch as well as when they comfort.

This basic principle of American law — our rights can only be interfered with by means of due process — is being put to a severe test today in most American states.

Here is the backstory.

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Repeal the Patriot Act, by Andrew P. Napolitano

Posted on March 5, 2020 | 1 comment

By any reading of the plain words of the Constitution, which is not how contemporary jurists read the Constitution, the Patriot Act is unconstitutional and should be repealed. From Andrew P. Napolitano at lewrockwell.com:

I have been writing for years about the dangers to human freedom that come from government mass surveillance. The United States was born in a defiant reaction to government surveillance. In the decade preceding the signing of the Declaration of Independence, the villains were the Stamp Act and the Writs of Assistance Act. Today, the villain is the Patriot Act.

Here is the backstory.

In 1765, when the British government was looking for creative ways to tax the colonists, Parliament enacted the Stamp Act. That law required all persons in the colonies to purchase stamps from a British government vendor and to affix them to all documents in one’s possession. These were not stamps as we use today, rather they bore the seal of the British government. The vendor would apply ink to the seal and for a fee — a tax — impress an image of the seal onto documents.

All documents in one’s possession — financial, legal, letters, books, newspapers, pamphlets, even posters destined to be nailed to trees — required the government stamps.

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Posted in Civil Liberties, Government, History, Law, Privacy, Surveillance

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What’s Wrong with FISA? By Andrew P. Napolitano

Posted on December 12, 2019 | Leave a comment

The whole FISA setup is simply unconstitutional. From Andrew P. Napolitano at lewrockwell.com:

Congress enacted the Foreign Intelligence Surveillance Act in 1978 in response to the unlawful surveillance of Americans by the FBI and the CIA during the Watergate era. President Richard Nixon — who famously quipped after leaving office that “when the president does it, that means that it is not illegal” — used the FBI and the CIA to spy on his political opponents.

The stated reason was national security. Nixon claimed that foreign agents physically present in the U.S. agitated and aggravated his political opponents to produce the great public unrest in America in the late 1960s and early 1970s, and thus diminished Americans’ appetite for fighting the Vietnam War. There was, of course, no evidence to support that view, but the neocons in Congress and the military-industrial complex supported it even after Nixon left office.

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Hey Comander! Start Commanding! by Ann Coulter

Posted on February 8, 2019 | 1 comment

Supposedly, the US president can make war all over the planet, but can’t secure America’s own borders. From Ann Coulter at anncoulter.com:

It’s great that members of Congress have located specific legislative language permitting the president to build a border wall, but I’m wondering: Has anybody read the Constitution?

It says:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

“(The president) shall take Care that the Laws be faithfully executed.”

With millions of foreigners illegally pouring across our border, it sure looks like the laws are not being “faithfully executed.” I wonder if the COMMANDER IN CHIEF has any authority to stop it.

The Constitution was expressly designed to make it difficult to do what our military does all the time — fight wars around the globe — and easy to do what our military never does — defend our own country.

Congress was given power to “declare war,” but not to “make war,” for the precise purpose of stalling the march to war. It was a selling point that the legislative branch takes forever to do anything.

But we had a country to protect, so the Constitution gave the energetic, fast-moving president the authority to deploy the military defensively.

As Duke University constitutional law professor H. Jefferson Powell put it in his 2002 book, The President’s Authority over Foreign Affairs: “(T)he president has a constitutional responsibility, independent of any act of Congress … to preserve the physical safety … of the United States against foreign threat.”

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Supreme Court: Cops Can’t Track Cell Phone Location Without A Warrant, by Tyler Durden

Posted on June 22, 2018 | Leave a comment

There’s good news and there’s bad news. The good news is that the Supreme Court came out the right way on a civil liberties issues. The bad news is that it was a 5-4 decision, not the 9-0 it should have been. Which shows how tenuous our civil liberties are. From Tyler Durden at zerohedge.com:

The Supreme Court ruled Friday that law enforcement cannot track people’s movements for periods of weeks or months without a warrant.

In a 5-4 ruling, the court held that the acquisition of cell-site records by government officials is covered under the Fourth Amendment.

Chief Justice John Roberts who wrote the opinion sided with the court’s four liberal judges; Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer – while Justice Anthony Kennedy, Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

While stressing that their decision doesn’t question longstanding surveillance techniques and tools such as security cameras, Roberts said that historical cell-site records present even greater privacy concerns than monitoring via GPS.

“Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities,” Roberts said, adding “While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.”

“A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”

The conservative judges strongly objected – writing four times as much in their dissents than Roberts did for the court’s majority.

Justice Anthony Kennedy said the government’s search of cellphone location records was permissible because they were held by the service provider, not the individual. “The court’s new and uncharted course will inhibit law enforcement.”

Justice Samuel Alito called it a “revolutionary” ruling that “guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” –USA Today

To continue reading: Supreme Court: Cops Can’t Track Cell Phone Location Without A Warrant

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