Posted on 06/22/2006 11:48:11 AM PDT by JTN
Last week, the Supreme Court ruled in its 5-4 decision in the case of Hudson v. Michigan that when police conduct an illegal, no-knock raid, any evidence they seize in the raid can still be used against the suspect at trial, even though the raid was conducted illegally.
I’ve spent the last year researching these types of volatile, highly-confrontational, paramilitary raids for a forthcoming report for the Cato Institute. The decision in Hudson is almost certain to lead to more illegal no-knock raids, more mistaken raids on innocent people, and more unnecessary deaths, both of civilians and of police officers.
Experts on both sides of the ruling have debated the issue for a week now. I’d like to make another point. The Supreme Court split on this case, right down the middle. The four most liberal justices voted in favor of the defendant, while the five most conservative justices voted in favor of the police.
The Court’s "swing voter," Justice Kennedy, filed a middling concurrence that sided with the conservatives, but warned them not to take their line of argument any further, or they’d lose his vote. But the majority opinion in this case, written by Anthony Scalia, was not actually all that conservative. Here’s why:
(Excerpt) Read more at foxnews.com ...
You don't make clear whether you find the points you listed in #176 are congruent or in opposition. But you're welcome.
"Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government."
Sometimes I get the impression from reading FR that some of us conservatives think the Courts have been giving us too much liberty that we shouldn't have, while overly restricting the power of the governments.
You mention the Commerce Clause; it was Justice Scalia's recent use of it in a medical marijuana case that made it plain to me that he is, when it suits him, the activist judge that it has been claimed he is elsewhere on the thread.
Agreed.
Scalia upheld the state and federal laws.
Justice Taney overruled the 1820 Missouri Compromise.
I'm sort of cringing at veering off on a discussion of either the Commerce Clause or the marijuana question, but while you are correct that Scalia wasn't actually legislating, my argument is that he was using the Commerce Clause too liberally, extending it beyond its meaning, which does IMO make him an activist at least in that case.
What if a state wished to allow prayer in public schools or a Nativity scene at Christmas or the Confederate Flag? They cannot do that today.
Five justices on the USSC have already made those decisions for 300,000,000 Americans.
I disagree. And he rejected Angel's demand that the court impose her preferences on the people of California.
Government doesn't get much more centralized and unaccountable than that.
Well, at least you recognize the premise.
"And he rejected Angel's demand that the court impose her preferences on the people of California."
No, I don't think so.
Proposition 215 allows patients to cultivate their own marijuana simply because federal laws prevent the sale of marijuana, and a state initiative cannot overrule those laws.
There seem to be plenty of parallels between Left and Right, I guess. But the idea that government should play a central role in shaping and ordering society, while fundamentally leftist in my view, clearly also finds a home with many on the Right. Our president is a good example of a man who thinks this IMO, --
Yep. There are very few politicians that view our Constitution as uninfringeable.
much as I like and admire him otherwise.
He's ok, I guess, from the standpoint of his possible replacements.
Thanks for #174 and the book recommendation. Looks interesting. Who is Barnett, btw.
Prof. Barnett is making a name for himself as a constitutional libertarian. Rational man, well respected in the judicial system.
"Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government."
Sometimes I get the impression from reading FR that some of us conservatives think the Courts have been giving us too much liberty that we shouldn't have, while overly restricting the power of the governments.
"Too much liberty".. Now there's a concept. Apparently too much liberty is bad for the soul.. - Or something. --
You mention the Commerce Clause; it was Justice Scalia's recent use of it in a medical marijuana case that made it plain to me that he is, when it suits him, the activist judge that it has been claimed he is elsewhere on the thread.
I shudder to think how Salia will 'rule' if the 'reasonable' regulation of firearms ever comes before him, considering his position on 'reasonable' search & seizures.
Scalia cited precedent going back to 1838. Plus, this case was very similar to Wickard v. Filburn.
I cannot see the judicial activism that you're hinting at.
Just because you are not trying to say dumb things, that does not mean that you are not saying dumb things.
You post as if you are too crazy and/or stupid to understand what I actually said. Are you sure you're not a "libertarian"?
And brave to admit it. LOL
I am really enjoying your posts on this thread. Thank you for injecting some well thought out facts to some who need to get a grip.
My opinion is that expansionist interpretations of the Commerce Clause qualify as activist, that's all.
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