Interesting views of the Constitution
From the Harvard Crimson comes an article on a brief submitted in the Solomon Act case (the Act requires universities accepting Federal funds to provide equal access to military recruiters). The brief makes the point that the Constitution gives Congress no enumerated powers relating to education, but does give Congress the power to "raise and support armies."
The article quotes Richard H. Fallon, a prof. of Constitutional Law at Harvard, to the effect that “It’s an argument which some of the real hard-line, right-wing conservatives who would like to go back to something more like an original understanding of the Constitution push..."
And over at the Volokh Conspiracy, Orin Kerr reports on a case now before the Supremes, involving "anticipatory" search warrants. These anticipate the defendant doing something in the future (in this case, receiving child porn which he had ordered) and essentially find that, while there is no probable cause right now, upon the defendant's doing the anticipated action, there will be probable cause in the future, so let the warrant issue now, to be executed only after the anticipated act. The minor problem is that the Fourth Amendment clearly says "no warrant shall issue but upon probable cause." Kerr notes that Justice Breyer is almost sure to vote in favor of such warrants, since he voted to uphold them when he was a Circuit judge. Kerr comments: "Note how Breyer replaces the textual requirement that "no Warrants shall issue, but upon probable cause" with a somewhat different inquiry into whether the warrant "can help assure that the search takes place" when probable cause exists."
Just a caveat for those who feel that a 2nd Amendment test case will be a slam-dunk because the historical evidence, language, etc. is clearly in favor of an individual right.... What the Constitution says, and what the Court finds it says, can be entirely different things. (We've already learned that "Congress shall make no law" abridging freedom of speech somehow permits Congress to outlaw campaign ads that so much as mention a candidate's name within 30 days of an election, etc.).
More and more, it seems the "rule of man" instead of the "rule of law" is the public talisman displayed by those in power.
Shameful, but historically predicatable. We never change as human beings, nor do our emotions.
Posted by: Poshboy at September 28, 2005 11:59 AM
President Andrew Jackson is said to have told the Supreme court, “Let them enforce it.” Referring to the Georgia Indian removal policy decision by the Supreme court. If the Supreme court does rule against an individual right despite the abundance of evidence, “let them enforce it”. In other words, this particular amendment and any consequential confiscations or disarmament leaves it up to somebody to enforce any such ruling. In New Orleans, the people gave up their firearms against the Fifth Circuit’s decree that it is an individual right. It can work both ways. In both equations the important element is the force of will. At some point people must choose between freedom and slavery and answer the question posed by Patrick Henry, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?”
Posted by: Rudy DiGiacinto at September 28, 2005 09:10 PM