Sen. Patrick Leahy, D-VT, has issued this statement on the Proposed Constitutional Amendment To Preserve Traditional Marriage:

Today’s hearing is merely the latest in what has become a series of hearings on amending the Constitution in one manner or another. It would seem that members of the majority are obsessed with rewriting the Constitution. This is the fourth constitutional amendment to which this Committee has devoted significant time for debate in the 108th Congress, and this is the third hearing this month to debate a constitutional amendment seeking to limit rather than expand the rights of the American people. This proposal is one of 61 constitutional amendments introduced so far this session. Sixty-one amendments to the Constitution introduced in this Congress alone, and more than 11,000 since the 1st Congress was convened. We can only imagine what the Constitution would look like if we had adopted amendments at the wholesale rate seemingly favored by many in the 108th Congress.

As we say often on TalkLeft, the Constitution is not a rough draft. Leave it alone.

The time for action is now. Contact your Senators and Congresspersons. Remind them that the United States Constitution they are sworn to uphold is sacred, and Congress should not be treating it like a "rough draft," to be edited at the whim of political might.

SKBubba has the latest on a proposed Tennessee constitutional amendment:

''Nothing in this constitution secures or protects a right to abortion or the funding thereof; except the legislature shall have the authority to make such exceptions as the legislature deems necessary, including the authority to make exceptions in the case of rape or incest or to save the life of the mother.''

SK adds:

At least the founding fathers had the foresight to make it pretty hard to change the Tennessee Constitution. An amendment has to pass both the House and Senate, not once, but twice in consecutive General Assemblies before being put on the ballot for the voters to decide in the next general election for Governor. That means that the issue can't be put to the voters until at least 2010, and the women of Tennessee are without protection from being forced to have abortions by liberal judges until then.

by TChris

In preparation for his Supreme Court argument yesterday, Solicitor General Ted Olson spent part of his weekend searching for free porn on the internet. It should not surprise most readers to learn that his exploration was rewarded, although he was not prepared to say whether every website returned by his search engine was actually obscene. Nor was Justice Sandra Day O'Connor surprised to learn that there is porn on the internet; she asked why Olson was in court defending new anti-porn laws when no serious effort has been made to enforce old ones.

At issue is the Child Online Protection Act, enacted in 1998 after the Supreme Court declared unconstitutional the Communications Decency Act.

The new law prohibits commercial Web sites from publishing material "harmful to minors" unless the site can show that it has made good faith efforts — requiring a credit card, for example — to keep out all Web surfers younger than 17. Violators could be fined as much as $50,000 and spend six months in jail, with higher penalties for repeat offenders.

The Third Circuit declared the law unconstitutional last year, but the Supreme Court instructed it to reconsider its decision. The Third Circuit again struck down the law on various First Amendment grounds. Joining the American Civil Liberties Union in this second trip to the Supreme Court were "a broad coalition of Web sites, booksellers and civil liberties organizations, as well as online stores like Condomania and online publications like Salon." Those entities worry that the law's overly broad coverage will chill their ability to engage in frank discussions of graphic subject matter. They also worry that their content will not reach interested members of their potential audience who may be reluctant to surrender credit card information as proof of age.

Those concerns are legitimate. As ACLU lawyer Ann Breeson said in her argument, "The government can't burn down the house to roast the pig."

Here's a timely article describing the process for amending the Constitution:

The Constitution provides that an amendment can be proposed either by Congress with a two-thirds majority vote in both the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. So far, none of the 27 amendments to the Constitution has been proposed by constitutional convention.

In the case of a congressional vote, after passage in the form of a joint resolution, the archivist of the United States submits the proposed amendment to the states for their consideration. A proposed amendment becomes part of the Constitution if it is ratified by three-fourths, or 38, of the 50 states.

The Consitution has been amended six times since the 1950's. Here are the last three, from the same article

• The 27th Amendment, ratified in 1992, to prevent Congress from passing a law giving itself a pay raise before the next election.

• The 26th Amendment, in 1971, which extended the right to vote to citizens as young as 18.

• The 25th Amendment, ratified in 1967, which set out rules for the transfer of presidential power to the vice president in case the president is unable to fulfill the duties of the office.

The last two amendments that had congressional approval (the Equal Rights Amendment and the D.C. Voting Rights Amendment) failed to pass before the expiration of their respective ratification deadlines.

Open thread on President Bush's announcement that he backs a constitutional amendment to ban gay marriage.

Our view: The Constitution is not a rough draft. Leave it alone.

We've lobbied against the Victims Rights Amendment for several years. The Washington Times has an article on it today, one for which we were interviewed on behalf of the National Association of Criminal Defense Lawyers (NACDL) a few months ago.

The D.C.-based National Association of Criminal Defense Lawyers also opposes an amendment. The group, which represents more than 38,000 lawyers, claims an amendment would give "undue power" to influence and impede the decisions of judges and prosecutors in courts nationwide, said Jeralyn Merritt, a spokeswoman for the association. "At great financial cost, it would leave us with a judicial system no longer dedicated to determining guilt or innocence, but preoccupied with airing rage and seeking retribution," Ms. Merritt said.

Here's why we oppose it: (from our 1997 article):

• Its package of government-guaranteed entitlements for crime "victims" for an opportunity to fully participate and object to bail and plea bargains at the accusatory stage of the proceedings, before a defendant has been found to be the perpetrator of the crime, effectively undermines the presumption of innocence which lies at the very core of our criminal justice system.

• It greatly adds to the powers of accusation against which the unpopular citizen accused must defend -- governmental and private -- and substantially increases the risk of injustice.

• It is so ambiguous that it fails to provide a workable definition of the key terms "victim" and "crime of violence." This will result in substantially unnecessary, and costly, litigation over rudimentary standing issues -- further clogging already over-burdened courts.

• It thrusts the ventilation of victims' hurt and anger to the center of all public criminal proceedings, threatening to overwhelm the courts' ability to fairly and effectively perform important administrative and judicial functions on behalf of not only the citizen accused, but all users of the publically financed justice system -- including victims of crime.

• It constitutionally and inflexibly forbids judicial deployment of the ancient rule of witness sequestration. Of course, this rule is a crucial protection measure against the tailoring of witness testimony to statements heard from a previous witness, and is a crucial aid in detection of testimony that is less than candid. Wigmore himself refers to sequestration in his famous treatise on evidence as ". . . one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice."

NACDL is not "anti-victim." In fact, the organization has consistently urged that victims of crime be treated with dignity, fairness and respect. However, NACDL submitted testimony to Congress opposing the amendment as unnecessary, unwise, and dangerous.

NACDL past President Robert Fogelnest best articluated the position:

"Massachusetts' highest court ruled 4-3 today that same-sex couples are legally entitled to wed under the state constitution, but stopped short of allowing marriage licenses to be issued to the seven couples who challenged the law. The court ordered the Legislature to come up with a solution within 180 days."

The text of the opinion is here, courtesy of Grumpy Old Bear.

Update: Trish Wilson sat in on the legislative hearings in Mass., including those on
gay marriage and civil unions. (She had provided written testimony opposing the partial birth abortion ban which was being heard the same day.) Her observations about that day are here.

The Supreme Court hears oral arguments today in Crawford v. Washington. The issue is whether there are exceptions to the defendant's right under the Sixth Amendment to confront and cross-examine witnesses against him. This article traces the origin of the right --back to the Walter Raleigh treason trial in England in 1603.

The defense brief argues:

"The right to confrontation is a categorical requirement that the government prove its case through live testimony that is subject to cross-examination."

We agree. Cross-examination has been said to be the greatest legal invention for ferreting out untruths in the Courtroom (We think Wigmore said that.)

The specific issue before the Court:

Is a pretrial recorded statement by the defendant's wife admissible as hearsay evidence on the grounds that it is virtually identical with the defendant's own pretrial statement?

The Supreme Court heard argument today in a Fourth Amendment case involving a faulty warrant by an ATF officer who faces a civil suit for damages. The 9th Circuit ruled the agent does not have immunity. The Justices seemed highly critical of the agent.

The warrant was issued for a ranch in Montana. The affidavit stated weapons would be found there. But the warrant itself, which is what the agents take with them when they go to execute the warrant, failed to mention weapons. It just mentioned the house as a place to be searched with no mention of what was to be searched inside the house.

The Fourth Amendment requires that items to be seized be specified with particularity. This warrant didn't fit the bill.

Why not just apply the constitutional provisions?" Justice Sandra Day O'Connor asked Groh's lawyer. "Why couldn't the agent be responsible for checking the warrant?"

Lawyer Richard Cordray told the justices that while the warrant itself omitted mention of weapons, all the specifics were listed on the affidavit used to win court approval of the search. Justice David Souter was unimpressed. The affidavit, he noted dryly, was back at the courthouse while agents were knocking on the door.

Then it was Justice Ruth Bader Ginsburg's turn. "Here's a house, and there's no bound at all" on what police can look for or what they can seize, she said. "It looks like just what the Fourth Amendment was supposed to address."

Only Scalia tried to help the ATF agent.

From this afternoon's edition of Congressional Quarterly (subscription only):

SENATE PANEL BACKS CONSTITUTIONAL AMENDMENT ON VICTIMS' RIGHTS

The Senate Judiciary Committee approved today a proposal to amend the Constitution to specify certain rights for crime victims. The committee voted 10-8 to approve the bill, capping a markup that stretched over a series of meetings in recent months. The panel began marking up the measure (S J Res 1) before the August recess, but struggled to keep a working quorum. The resolution will not see Senate floor action for at least two months, if at all. The proposed amendment, sponsored by Jon Kyl, R-Ariz., and Dianne Feinstein, D-Calif., would give victims or their representatives the right to be heard at public release, plea sentencing and other proceedings. It also would require judicial officials to consider victims' safety when deciding the fate of defendants.

If it goes to a full senate vote, it may be close. 66 votes (2/3) are needed to pass a constitutional amendment. The ACLU's Senate tally indicates 35 are opposed or likely opposed and 51 are in favor or likely in favor. Senate floor action before recess is unlikely because of the busy fall agenda. In the House, there likley will be a subcommittee hearing this fall.

Contact your elected officials now and oppose this amendment. It's the wrong answer to victim's rights. Here's more.

[Thanks again to Kyle O'Dowd, Legislative Director of the National Association of Criminal Defense Lawyers (NACDL) for the update.]

The Ten Commandments monument has been removed from the court rotunda. Reportedly, it will be moved someplace else within the building.

Tim Francis-Wright of K-Marx the Spot has uncovered some interesting details about the Alabama constitution.

Update: Now the ultra-right is going after Alabama Attorney General and embattled Bush judicial nominee William Pryor:

Protesters hoping to keep a Ten Commandments monument in the state judicial building marched on Atty. Gen. Bill Pryor's office Tuesday, demanding he resign for abiding by a federal court order for the marker's removal.

And Atrios gets it right, as usual:

300 bigots and lunatics protesting around a carved rock, worthy of nonstop coverage. 100,000 people protesting a war, worthy of brief snide commentary.

A judicial ethics panel has suspended Chief Justice Roy Moore due to his refusal to comply with a court order to remove the Ten Commandments monument.

Moore was automatically suspended with pay when the nine-member Judicial Inquiry Commission referred the ethics complaint against Moore to the Court of the Judiciary, which holds trial-like proceedings and can discipline and remove judges.

The Court of the Judiciary, currently made up of four judges, three lawyers and two non-lawyers, has handled numerous judicial ethics cases. The ethics complaint was filed by Stephen Glassroth, the Birmingham lawyer who filed the initial suit. His reaction to the suspension:

"I respect whatever it is that they do," he said.

Glassroth is a member of the board of directors of the National Association of Criminal Defense Lawyers ( NACDL.)