Posts Tagged ‘Supreme Court’

On the June 27, 2015 episode of Exposing Faux Capitalism, I discussed the following issues:

Full analysis of the U.S. Supreme Court decision on same sex marriage that you won’t hear anywhere else, including the legal, historical, political, religious, biological and pop culture aspects.

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Sandra Day O'ConnorIn her March 5, 2013 appearance on Charlie Rose, she said in reference to her “swing vote” capacity on the Court (at 9:29):

The Court was divided in such a way that a single vote could turn it from an affirm to a reverse.

Except that Justices and judges don’t cast votes — they render legal opinions — that is, unless she’s referring to their effective behaviour these days, in casting political votes on legal cases, such as Bush v. Gore (2000) and Roe v. Wade (1973), which is completely contrary to the U.S. system of separation of powers.

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English: Antonin Scalia, Associate Justice of ...

From the November 27, 2012 interview with Supreme Court Justice Antonin Scalia on Charlie Rose:

  • 9m – Says he supports a reasonable, not a strict interpretation of the Constitution. This is, of course, how he justifies so called “reasonable” limitations on the enumerated rights in the Bill of Rights, such as “reasonable” gun control restrictions.
  • 17m – Says back in the good old days, judges used to lie when changing the meaning of the Constitution, but now they make it mean whatever they say it means
  • 18m – Says he has no more power to interpret the constitution than the President or the legislative branch
  • 19m – His Lincoln hypocrisy on habeas corpus, in criticizing it, yet ruling in Hamdan v. Rumsfeld (2006) that habeas corpus didn’t apply to a non-U.S. citizen detained at Guantanimo Bay, in the absence of a constitutional suspension by Congress, despite the U.S. Constitution restricting the power of the federal government, regardless of the citizenship or location of the detainee.
  • 35m – He expressed his surprise about Chief Justice John Roberts’ tax clause ruling in support for Obamacare
  • 37m – Claimed that the majority opinion in Bush v. Gore was based upon the Florida courts allegedly violating the Constitution, yet mentioned about the U.S. Supreme Court decision ending the vote counting so the U.S. wouldn’t be a laughing stock
  • 41m – Says judicial activism started under the Warren court
  • 46m – Says he had to do all of the originalist interpretation when he got on the court, since no one else was doing that
  • 49m – Charlie Rose said he promised Scalia he wouldn’t ask him anything he didn’t already know the answer to, showing how such interviews are tightly scripted and controlled

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John Paul Stevens, U.S. Supreme Court justice.

Former Associate Supreme Court Justice, John Paul Stevens, explained the changing definition of “originalism” on the October 18, 2011 episode of Charlie Rose (starting at 4:04):

Originalism actually is described in different ways in different times. And some people think it refers to the original intent of the people who drafted either a statute or a constitutional provision. But I think more and more, in recent years, those who describe themselves as originalists and not focused on the intent of the draftsmen, but rather then on intent of the reader or the community in which the law is enacted or distributed.

He went on to say that Justice Scalia is in the latter camp.

The particular view of originalism that is taken can be very significant in reaching decisions on certain issues. For example, the Founders were clear that the Bill of Rights only intended to apply to the federal government and not the several States. Yet, it may be that it was the expectation of some in the Union that it should also apply to their particular state as well.

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Gov. Jesse Ventura (Ref-MN)

From my analysis, the judge acted in accordance with the law in throwing the case out, correctly ruling that Ventura had no standing, because the court had no jurisdiction to hear the case.

That is constitutional, since Congress has the power to create and abolish any federal courts below the Supreme Court that it wants (Article I, Section 8, clause 9 of the Constitution), and set the rules of judicial proceedings thereof, and they put jurisdiction in these cases in the Circuits Court of Appeals.

Even though the TSA searches are unconstitutional, in violation the Fourth Amendment protection against unreasonable searches, there is the separate constitutional issue of whether a particular court has the jurisdiction to hear the case, and in Ventura’s case, I think the judge rightly ruled that it didn’t.

This is an educational opportunity for those who say that the Constitution is the greatest document ever written by man, since it is also the document that lawfully allows Congress to keep American citizens from individually challenging the constitutionality of TSA searches. The Constitution only gives the Supreme Court original jurisdiction over cases involving ambassadors and where one of the parties is a State, so the only constitutional way to put a stop to these TSA searches, barring an explicit constitutional amendment, is for Congress to change the law, or for one or more of the States to successfully challenge it in the Supreme Court.

But just because the Supreme Court has jurisdiction doesn’t mean it is obliged to hear the case. It likely won’t, just like it didn’t hear the cases concerning President Obama’s eligibility for president, so again, the ball falls back in the people’s court in putting pressure on Congress.

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Supreme Court of Canada building

On a recent radio program, in comparing the liberties of Americans to the residents of other countries, the host said Canadians have no “right” to an attorney.

I agree with that, and the same applies in the United States, and all across the world.

There’s no right to an attorney, since a right doesn’t require the consent of others, and a right to an attorney implies the forced labour of attorneys.

However, even if talking about the privilege of an attorney, the 2010 Supreme Court of Canada’s decision specifically related to no “right” to have an attorney present when being interviewed by police. The Court recognizes the right of a suspect to remain silent, and so as long as they do, the “right” to an attorney in questioning isn’t relevant.

While Canada may currently have less of a protection on that front, the Supeme Court of Canada hasn’t ruled like the U.S. Supreme Court has recently ruled 8-1, that Americans can have their doors busted down without a warrant if police suspect evidence of a crime is being destroyed.

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A right of jurors in all common law jurisdictions (UK, U.S., Canada, Australia, …), regardless of whether the legal system allows jurors to be made aware of it or exercise their right, is jury nullification. That is, the right of juries to find the defendant not guilty of a crime if they feel that the charge or penalty is unjust.

Historical examples of the effective application of this right include U.S. jurors nullifying laws requiring escaped slaves to be returned to their “owners,” refusing to convict on prohibition charges in the U.S. during the Great Depression, and in Canada, a jury refusing to convict a father for murder, who killed his suffering daughter with cerebral palsy, arguing that it was a compassionate killing (R. v. Latimer).

I was aware of this right in the past few years, but particularly delved into it earlier this year, finding support for it at the Supreme Court level of Canada and the United States. The first Chief Justice of the Supreme Court of the United States, John Jay, wrote in his opinion in Georgia v. Brailsford (1794):

“[I]t is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

Given that this statement was made by the first Chief Justice of the highest court in the United States, who was recognizing a common law principle of fundamental rights and justice, it is therefore precedent, which all subsequent Supreme Courts and all lowers courts are required to uphold.

The significance of jury nullification is that, in any case, a single juror can legitimately find the defendant not guilty based on the belief that the charge or penalty is unjust.

I therefore propose that this right be brought out of the shadows and into the minds of the wider community, and seriously pursued as a strategy in any current and future court cases involving unconstitutional, unlawful, and unjust acts of government against its citizens.

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