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A First Amendment Threat Related To The Juan Williams Firing

now appears:

[Mike] Huckabee [. . .] call[ed] on Congress to pull funding from NPR. “NPR has discredited itself as a forum for free speech and a protection of the First Amendment rights of all and has solidified itself as the purveyor of politically correct pabulum and protector of views that lean left,” Huckabee said. “It is time for the taxpayers to start making cuts to federal spending, and I encourage the new Congress to start with NPR,” he added.

Cutting government funding because of a decision by NPR on what speech to air would amount to government interference with free speech and would likely violate the First Amendment:

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The Right's Drive To End The "Separation of Church and State"

"Where in the Constitution is the separation of church and state?" - Christine O'Donnell

The absurd controversy over Markos' use of the title American Taliban in his latest book has papered over the real issue for liberals and progressives - the unending drive of the Right to constitutionalize government promotion and imposition of religion. The above quote from Christine O'Donnell has drawn a great deal of attention in the Left blogs, but I think the focus on O'Donnell's ignorance with regard to the Establishment clause misses the larger point - O'Donnell was merely parroting the standard line of the Republican Party and the Right on the separation of church and state. Consider National Review's Ramesh Ponnoru's defense of O'Donnell:

[O'Donnell] denies is that the First Amendment requires “the separation of church and state.” Here’s something I wrote about this question several years ago that, I think, is on point: [. . .] People mean different things when they talk about “theocrats,” “the separation of church and state,” and “secularism.” The word “secular” can describe both irreligion and neutrality about religion.

Ponnoru is not writing in a vacuum. The drive to change the meaning of "separation of church and state" is a program of longstanding for the Right. Consider the 2002 case Zelman v. Simmons-Harris, where Chief Justice Rehnquist wrote:

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Getting It Right On Birthright Citizenship

I was on a conference call organized by the Immigration Policy Center titled "The 14th Amendment and Birthright Citizenship, Discussing the History and Ramifications of Amending the Constitution." Good background link here. The panelists were Michele Waslin, Senior Policy Analyst, Immigration Policy Center (Moderator), Margaret Stock, Attorney and Retired Lieutenant Colonel, Military Police Corps, US Army Reserve, Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Eric Ward, National Field Director, Center for New Community, and Bill Hing, Professor of Law at University of San Francisco.

It was a good overview and the discussion was both policy based and a review of the relevant law. On the case law, of course the starting point is the 1897 case, US v. Wong Kim Ark. Also discussed was the legislative history of the 14th Amendment. A good article on that is here. I asked two questions - one was about Wong Kim Ark and its discussion of birthright citizenship as, not only being enshrined by the 14th Amendment, but also by the Constitution itself. To wit, the birthright citizenship language of the 14th Amendment was only necessary because Dred Scott put it in doubt. My second question was directed at some misinformation on the subject disseminated last night on Keith Olbermann's show by Professor Jonathan Turley:

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GOP Wants To Revisit Dred Scott

The GOP continues to reveal itself:

Mitch McConnell (R-Ky.) told The Hill on Monday that Congress “ought to take a look at” changing the 14th Amendment[. . . .] McConnell’s statement signals growing support within the GOP for the controversial idea, which has also recently been touted by Senate Minority Whip Jon Kyl (R-Ariz.) and Sen. Lindsey Graham (R-S.C.)In an interview, McConnell said the 14th Amendment provision should be reconsidered in light of the country’s immigration problem.

To refresh our memories, let's look at the first line of the Fourteenth Amendment, which is what Republicans are focused on now (they hate the whole thing of course):

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Fourteenth Amendment was ratified in July 1868, by the Reconstruction Congress, and the line quoted above was intended to overturn the infamous Dred Scott decision which addressed this question:

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Federal Judge: Why Can't Arizona Be "Inhospitable" To Immigrants?

A strange question for a judge to ask generally, but the concept of preemption may not be well understood by her:

"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler. Her comment came during a rare federal court hearing in the Justice Department's lawsuit against Arizona and Gov. Jan Brewer (R).

Bolton [. . .] also questioned a core part of the Justice Department's argument that she should declare the law unconstitutional: that it is "preempted" by federal law because immigration enforcement is an exclusive federal prerogative. "How is there a preemption issue?" the judge asked. "I understand there may be other issues, but you're arguing preemption. Where is the preemption if everybody who is arrested for some crime has their immigration status checked?"

I am not sure what the judge's goal is with these questions, but they are very uninformed, and if serious (oftentimes judges ask questions socratically), demonstrate that this judge does not understand preemption.

Why can't Arizona "enforce" immigration laws unless the federal government authorizes such enforcement? Simply, the Constitution does not permit it. Immigration policy and enforcement is solely, by express provision of the Constitution (see also the Federalist Papers), the province of the federal government. This is not a close question. It is a slam dunk.

Speaking for me only

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Immigration, The Preemption Doctrine And Nonsequitors

At NRO, Andrew McCarthy writes:

Well whaddya know? It turns out that Rhode Island has long been carrying out the procedures at issue in the Arizona immigration statute: As a matter of routine, RI state police check immigration status at traffic stops whenever there is reasonable suspicion to do so, and they report all illegals to the feds for deportation. [. . .] If, as President Obama and Attorney General Holder claim, there is a federal preemption issue, why hasn’t the administration sued Rhode Island already? After all, Rhode Island is actually enforcing these procedures, while the Arizona law hasn’t even gone into effect yet.

Could it be because — as we’ve discussed here before — the Supreme Court in Muehler v. Mena has already held that police do not need any reason (not probable cause, not reasonable suspicion) to ask a person about his immigration status?

As to why the Justice Department has not sued Rhode Island, I can not say, but whether such procedures violate the 4th Amendment has nothing to do with the preemption issue. It does raise an important point however, one that was stated by the NYTimes in an editorial today:

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Uncertainty in Life And The Constitution: Justice Souter's Harvard Commencement Address

[T]he future of the Constitution as the Framers wrote it can be staked only upon [. . .] trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people. -- retired Justice David Souter, 2010 Harvard Commencement Address

As a longtime proponent of the view that the Constitution was ORIGINALLY intended to be a "living" document (see for example, this and this), it was with great interest that I read about retired Justice David Souter's Harvard commencement address on constitutional interpretation. E.J. Dionne finds the political strong point for the views he, Souter and I appear to share regarding constitutional interpretation - comparing Plessy and Brown:

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Regarding Rand Paul's statements on the Civil Rights Acts, Ezra Klein wrote:

I take Paul at his word that he's not a racist. What he is, however, is an ideological extremist. He is so categorically opposed to public regulation of private enterprise that he cannot even bring himself to say that the Woolworth lunch counter should've been desegregated. [. . .] If this isn't about race, then it is about all questions relating to federal regulation of private enterprise. As a senator, Paul will be faced with that question frequently. And his views on it are clearly very, very far from the mainstream.

(Emphasis supplied.) The notion that Rand Paul's view of the Commerce Clause power is extreme in the sense that it is not espoused by a major political party and mainstream Media figures is incorrect. The "Constitution in Exile" movement based in the Federalist Society completely agrees with the views espoused by Paul. But to make the point clearer, in 2005 Ezra Klein's WaPo colleague George Will expressed Paulian views of the Commerce Clause power:

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Civil Liberties Groups Urge Holder and Obama Not to Water Down Miranda

Just reading the list of 35 signatories to this letter sent to Attorney General Eric Holder today urging him to abandon efforts to have Congress water down Miranda rights, gives hope that progressive lobbying is still alive in this country.

In its letter to the Attorney General, the coalition stated, “Current law provides ample flexibility to protect the public against imminent terrorist threats while still permitting the use of statements made by the accused in a criminal prosecution. Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”

Here are the groups and the text of the letter: [More...]

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GOP State AGs File Suit Against New Health Law

Here is the complaint (PDF). I took a cursory glance and have little respect for the constitutional arguments against the mandate, though they clearly have more political potency. More plausible is the argument regarding the imposition of duties upon State officials:

The Act requires states to expand massively their Medicaid programs and to create exchanges through which individuals can purchase healthcare insurance coverage. The federal government is to provide partial funding for the exchanges, but will cease doing so after 2015. [. . .] The federal government will not provide necessary funding or resources to the states to administer the Act. Nevertheless, states will be required to provide oversight of the newly-created insurance markets, including, inter alia, instituting regulations, consumer protections, rate reviews, solvency and reserve fund requirements, and premium taxes. States also must enroll all of the newly-eligible Medicaid beneficiaries (many of whom will be subject to a penalty if they fail to enroll), coordinate enrollment with the new exchanges, and implement other specified changes. The Act further requires states to establish an office of health insurance consumer assistance or an ombudsman program to advocate for people in the new programs.

The GOP State AGs will argue this runs afoul of Printz. The complaint states:

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The First Amendment: Consequentialists And Principleds

Discussing the Citizens United case (PDF), Stanley Fish writes:

The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.

This sounds pretty in that "majesty of the law" sort of way, but is it true? Not really. I'll explain on the flip.

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The Constitutional Rights Of Foreign Individuals And Corporations

[T]he Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems. - President Obama on the Citizens United decision.

Glenn Greenwald writes:

[I]t has become one of the most pervasive myths in our political discourse: namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners. [. . .] That is blatantly false, and anyone making that claim -- as Susan Collins and so many others have -- is either extremely ignorant or extremely dishonest

Justice Alito and many conservatives have taken issue with President Obama's statement about Citizens United. Perhaps their views are rooted in the false myth Greenwald alludes to. In his dissent in Citizens United, Justice Stevens wrote:

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