by TChris

The "unitary executive theory" is conservative codespeak for "all powerful president," a notion readily embraced by President Bush. In practice, our unitary executive is a government of one (or a few, if you count Cheney, Rove, and Condi), a supreme decider whose power is subject to no constitutional or statutory limits. After all, he couldn't protect us from all the suiciders while freeing the world from Islamic fascist tyranny if he yielded to the unpatriotic demands of lawmakers or judges.

To counter the academic and think tank writing that promoted (with startling success) the unitary executive theory, the American Constitution Society co-sponsored a symposium, "War, Terrorism and Torture: Limits on Presidential Power in the 21st Century," last October. Three papers that grew out of the symposium were released this week:

Unitariness and Myopia: The Executive Branch, Legal Process, and Torture by Cornelia Pillard views torture as indicative of a more general problem: an executive branch tendency during times of national security crises to view legal constraints as annoying, even harmful, obstacles to effective executive action. Pillard explores reform aimed at promoting executive branch respect for the law, even in trying times.

The ACLU has lost its case challenging the constitutionality of the New York Subway searches.

The 2nd U.S. Circuit Court of Appeals on Friday rejected a challenge to the searches by the New York Civil Liberties Union, saying that a lower court judge properly concluded that the program put in place in July 2005 was "reasonably effective."....The appeals court said it was proper for Judge Richard M. Berman to conclude that preventing a terrorist attack on the subway was important enough to subject subway riders to random searches. The text of the opinion is here.

In its written ruling, the appeals court noted that New York's subway system is an "icon of the city's culture and history, an engine of its colossal economy, a subterranean repository of its art and music, and, most often, the place where millions of diverse New Yorkers and visitors stand elbow to elbow as they traverse the metropolis."

The court said that in light of how many people use the subway, it was "unsurprising and undisputed that terrorists view it as a prime target."

This doesn't mean we can't remind the searchers of the Fourth Amendment as they go through our bags.

Score one for the Constitution. The Senate, by one vote, rejected a constitutional amendment to ban flag burning.

Here's the vote tally.

The ACLU says:

"The Senate came close to torching our constitution, but luckily it came through unscathed," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "We applaud those brave Senators who stood up for the First Amendment and rejected this damaging and needless amendment.

The Senate began debate on the flag-burning Amendment yesterday. It's within a vote or two of passing and already has passed in the House. If it passes by a 2/3 vote in the Senate, it must be ratified by 38 states during the next seven years and then will become the 28th Amendment to the U.S. Constitution.

The Constitution is not a rough draft. We don't need to amend it, particularly for something that would serve as precedent for further restrictions on our First Amendment rights.

The Supreme Court today ruled a domestic violence victim's responses to questions posed by a 911 operator are admissible at trial if the victim doesn't testify because they were made during the crime and for the purpose of assessing whether there was an emergency. As such, the Court ruled they were not "testimonial." Because they are not "testimonial", the defendant's 6th amendment right to confront witnesses does not preclude their admission. At least that's what I gleaned from a quick read of the opinion.

From the Supreme Court opinion (pdf):

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Update: Howard Bashman has a complete rundown with links to all of today's opinions and see Scotus Blog for their excellent commentary.

by TChris

In even numbered years, Republicans attack the Constitution. Having failed to write homophobia into the Bill of Rights, Republicans are reduced to making their biennial appeal for a partial repeal of the First Amendment. When Democrats are dared to support the rights of (relatively rare) flag burners, they need to make clear that it is the Constitution they support.

Once again, we round up the commentaries that denounce this nonsense:

Bob Kerrey in the Washington Post. If our First Amendment is altered to permit laws to be passed prohibiting flag desecration, would we like to see our police powers used to arrest an angry mother who burns a flag? Or a brother in arms whose disillusionment leads him to defile this symbol of the nation? I hope the answer is no. I hope we are strong enough to tolerate such rare and wrenching moments. I hope our desire for calm and quiet does not make it a crime for any to demonstrate in such a fashion. In truth, if I know anything about the spirit of our compatriots, some Americans might even choose to burn their flag in protest of such a law.

For the second time in two years, the U.S. Senate is debating a constitutional ban on gay marriage. Today, Colorado Senator Wayne Allard argued in favor of the constitutional Amendment. A procedural vote may be held tomorrow.

"It's not about politics or discrimination," Allard told colleagues on the floor of the U.S. Senate. "It's about marriage and democracy."

I don't understand the connection between marriage and democracy. I thought in a democracy, all people are equal. If marriage is a democratic value, then shouldn't everyone be able to choose their spouse?

The Democrats have their talking points in order. Instead of arguing against a prohibition of same-sex marriage, they are talking about all the critical issues the Senate should be debating instead of marriage.

President Bush has sealed the records seized by the FBI from Rep. William Jefferson's congressional office.

The president directed that no one involved in the investigation have access to the documents taken last weekend from the office of Rep. William Jefferson, D-La., and that they remain in the custody of the Justice Department's solicitor general.

Bush's move was described as an attempt to cool off a heated confrontation between his administration and leaders of House leaders of both parties, particularly Speaker Dennis Hastert.

The Solicitor General's office? A commenter at Law Prof Orrin Kerr's blog says:

The Solicitor General's office is an impenetrable lockbox! It is clothed in sovereign immunity from everything! What's more, the Solicitor General's offices cannot be breached by a warrant! The Solicitor General speaks and debates before the Supreme Court and thus is protected by Article III AND Article I.

Don't miss Law Professor Laurence Tribe in the Boston Globe today, Bush Stomps on Fourth Amendment, pertaining to the NSA warrantless surveillance.

Privacy apart, this president's defiance of statutes by the dozens is constitutionally alarming. But the matter goes deeper still. Even if Congress were to repeal the laws securing telephone privacy, or if phone companies found loopholes to slip through when pressured by government, the Constitution's Fourth Amendment shield for ''the right of the people to be secure" from ''unreasonable searches" is a shield for all seasons, one that a lawless president, a spineless Congress, and a complacent majority of citizens -- who are conditioned to a government operating under a shroud of secrecy while individuals live out their lives in fishbowls -- cannot be permitted to destroy, for the rest of us and our children

by TChris

You know it's an election year when politicians take time away from the pressing issues of the day to promote amendments to the Constitution that lessen our rights.

Approved 6-3 by a Judiciary Committee panel on the Constitution, the amendment reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Other efforts to take away rights we're likely to hear about this summer:

The flag measure is one of several constitutional amendments Republican leaders are advancing to energize conservative voters even though none of them is likely to clear the Senate. Others include outlawing abortion and banning same-sex marriage.

The ACLU responds here to the extreme view that symbols of freedom are more important than actual freedom.

by TChris

An op-ed in today's NY Times frets about two cases before the Supreme Court that ask whether a 911 call should be admitted into evidence to prove a criminal charge when the caller doesn't testify as a witness. The writers worry that domestic abusers go unpunished when their victims refuse to testify, and argue that 911 calls are the only evidence in those cases that can "bring domestic abusers to justice."

The unstated assumption in the op-ed, of course, is that 911 callers are always victims who call to report an actual crime. This is nonsense. Some 911 calls are pranks. Some 911 calls are made by unharmed but bitter individuals who want to make trouble for spouses or roommates. Some 911 calls are made in anger, and the accusations that are voiced are exaggerated. Some 911 calls are made by people who are drunk or drug-influenced or mentally ill. Assuming, as does the op-ed, that 911 calls are inherently "reliable evidence" is absurd.

by TChris

Although some disagree, many people, including the Secretary of Education, emphasize the importance of teaching science and math so that the United States can continue to compete in technology-driven markets. Just as important to the functioning of a constitutional democracy, however, is an understanding of the fundamental freedoms guaranteed by the Constitution. Judging by the nation's vast ignorance in that regard, schools need to do better.

What are the five freedoms guaranteed by the First Amendment? Most people just don't know. Here's a clue: driving a car (which wasn't a popular activity when the Bill of Rights was added to the Constitution) and owning a pet are not among them.

Half of 1,000 Americans randomly surveyed by the McCormick Tribune Freedom Museum could name at least two of the five members of Fox Television's Simpson family, the stars of the network's long-running show.

But just 28 percent of respondents could name more than one of the five freedoms listed in the U.S. Constitution's First Amendment -- about the same proportion that could name all five Simpson family members or could recall the three judges on Fox TV's top-rated "American Idol." Just 8 percent could recall three First Amendment freedoms.