The Supreme Court heard two cases yesterday dealing with the exclusionary rule and the fourth Amendment.

The exclusionary rule case is Herring v. United States. Criminal defense attorney Cheryl Stein has an op-ed in the Washington Times on why we need to keep the rule, and I encourage everyone to read it, granting TalkLeft permission to reprint it in full here. It appears below the fold:

Glenn Reynolds keeps writing about the constitutional role of the Vice Presidency issue that came up in the VP debate. Reynolds wrote about the issue in 2007 (I was unconvinced by his argument, but hell, maybe lots of other people were convinced) and now points to Josh Chafetz's piece at TNR. Chafetz gives a historic rundown of the original view of the Vice Presidency in the Constitution:

A couple of months ago, TalkLeft asked whether the government is tracking your cell phone's movement. We know the government asks cell phone service providers to turn over location records that show the coverage area in which a subscriber's cell phone was transmitting on specified days. The question is whether the police need to show probable cause to obtain a court order for production of those records.

[A recent] ruling (.pdf) from Judge Terrence McVerry of the Western Pennsylvania U.S. District Court deals a blow to investigators who have been getting cellphone location data on in the past simply by proving to a judge that the information would be relevant to an investigation. That's the same standard used to force a telephone company to reveal the name and address of a subscriber.

Judge McVerry affirmed a well reasoned decision (.pdf) by Magistrate Judge Lisa Pupo Lenihan. The decision recognizes that "the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse." [more...]

Given the previous discussion of Roe, I wanted to give some excerpts from the decision for the consideration of our readers. Follow me to the flip.

Some are championing Jonathan Turley's line of argument that all possible criminality by the Executive Branch is equal and the most serious of business, requiring even impeachment. Remember Turley supported the impeachment and removal of President Clinton. This is a wrong headed approach to take in my opinion. You can not reasonably compare anything even arguably done by President Clinton to the brazen attack on the Constitution and the separation of powers by the Bush Administration. I reject Turley's argument in its entirety and think it muddles the issues in a harmful way.

For example, lost in the shuffle of Obama advisor Cass Sunstein's statement about egregious crimes is the fact that Sunstein actually does not believe that Bush Administration did anything wrong. As I discussed in 2005, Sunstein supported the Bush Administration claims on military tribunals and illegal wiretapping. Indeed, Sunstein endorsed the Bush Administration's argument regarding the inherent authority of the President to disregard laws when acting as Commander in Chief. More . . .

Glenn Greenwald debates Cass Sunstein on FISA, on Amy Goodman's program, Democracy Now. It is the second segment after headlines, starting at the 33 minute mark. Glenn also speaks about the ATT sponsorship of the Democratic National Convention about 15 minutes earlier. I have not listened to it yet and will update this post with my thoughts afterwords.

Sunstein - we peons have "widely misunderstood" what Obama did. Oy. Greenwald - to say this was not a flip flop by Obama is "insultingly false." Sunstein is a condescending ass - "I appreciate the vehemence." What a creep (speaking for me only.) Listen to it because Sunstein proves he has no idea what he is talking about. It is hard to explain what a disingenuous appearance Sunstein makes here. Today, he says he does not agree with the Bush inherent authority argument. But in in 2002 (on military tribunals) and in 2004 (on warrantless surveillance) he DID agree with the Bush Administration's outrageous legal claims. Sunstein can not be trusted (speaking for me only.)

Via Instapundit, Ilya Somin at Volokh writes:

Libertarian Party presidential candidate Bob Barr is one of many people who confuse the theory of the "unitary executive" with the claim that the executive has virtually unlimited power. Barr argues that "McCain has endorsed, in action if not rhetoric, the theory of the 'unitary executive,' which leaves the president unconstrained by Congress or the courts." In reality, the unitary executive argument is a theory about the distribution of executive power, not its scope.

The problem with Somin's argument is that it has been the Bush Administration that has twisted the meaning of the phrase unitary executive to mean what Barr rightly criticizes. More . . .

Whether or not it makes sense to require eighth grade students to take algebra, as California will now do, the state's effort to comply with the No Child Left Behind Act raises a bigger issue. Sure, a basic understanding of science and math is useful, and exposure to those subjects (at least with good teachers) may encourage kids to explore fields that they didn't realize were of interest to them.

But as important as science and math may be, isn't it equally important for students to understand the basic structure of government and to have a fundamental grasp of the United States Constitution? Aren't children being left behind if they don't know that the Constitution protects rights and imposes limits upon governmental authority? What is the purpose of a law that focuses on "core" subjects like reading and math while neglecting a subject that is equally important to a functioning democracy: the workings of American government and the role that voters are supposed to play in shaping it?

Sandy Levinson raises this interesting issue:

One of the valuable points made in Saul Cornell's book on the Second Amendment is that self-defense was treated as a "common-law" right and not a "constitutional right" at the time of the Framing. So, as a matter of sheer historical accuracy, Scalia was probably wrong in suggesting that the Second Amendment had anything to do with safeguarding a right of self-defense. But, of course, there are other amendments to the Constitution, including the Ninth Amendment, which reminds us that there are rights beyond the ones enumerated in the first eight amendments.

. . . It is sad that supporters of gun rights are stuck with Scalia's opinion instead of one that truly engages with the materials of American constitutionial history and theory and provides a much more plausible backing for the decision.

Read the whole thing.

The issue before District Judge John Bates can be framed in simple terms: Does the Constitution empower the president to block enforcement of congressional subpoenas that command the testimony of senior presidential advisers concerning the firings of U.S. Attorneys? Judge Bates said yesterday:

"Whether I rule for the executive branch or I rule for the legislative branch, I'm going to disrupt the balance [of powers.]"

Not really. Ruling on the question will disrupt the status quo -- an impasse -- but the balance of powers has already been disrupted by a president who considers himself above the law. Judge Bates has an opportunity to restore the proper balance: each branch acting as a check against abuses of power by the other branches. [more ...]

Richard Epstein does not often write things I agree with but he did today about the Boumediene decision, where he echoes my consistent critique of the DC district court and DC circuit court decisions:

Enemy prisoners of war are never granted [habeas], either in the United States or abroad. What matters is whether a prisoner is or is not an enemy combatant. The defendants in Eisentrager, German war criminals, admitted being enemy combatants. The six plaintiffs in Boumediene, accused of plotting an attack on the American Embassy in Bosnia, claim they are not. They should be entitled to challenge both the government’s definition of an enemy combatant and the factual basis of their arrest. And they should be able to do so, as the court stressed, under standard habeas corpus procedures that allow them to present evidence and confront witnesses, and not under the paltry procedures outlined by the 2006 Military Commissions Act.

(Emphasis supplied.) Precisely.

The First Amendment's Establishment Clause prohibits the government from favoring one religion over another. It seems a no-brainer that South Carolina, by offering a license plate with a cross and the phrase "I Believe," is favoring Christianity. The State doesn't offer license plates with the religious symbols that represent other faiths, or a plate that says "I Don't Believe."

"The license plate was approved unanimously by the state’s Legislature earlier this year" because after all, what South Carolina legislator wants to vote against Jesus? South Carolina deserves the lawsuit (pdf) that Americans United for Separation of Church and State brought "on behalf of three Christian clergy members, a rabbi and a Hindu group from the state, arguing that the license plates violated the Constitution."

Approval of the plate “was a clear signal that Christianity is the preferred religion of South Carolina,” said the Rev. Barry W. Lynn, the group’s executive director and a United Church of Christ minister, “and obviously we don’t believe the Constitution allows this.”

Obviously.