Posts filed under Judiciary

WordPress Themes, GPL, and Copyright Case Law

Filed in Web DevelopmentTags: Copyright, GPL, Judiciary, Plugins, Themes, WordPress

Within the WordPress community, the question of GPL inheritance of WordPress themes erupts into contentious debate with the reliability - if not the frequency - of Old Faithful. While I understand that, according to the GPL interpretation of Matt Mullenweg, the Free Software Foundation (FSF), and the Software Freedom Law Center (SFLC), WordPress themes are derivative of WordPress and therefore must necessarily inherit WordPress' GPL, I would like to investigate the issue not in light of their interpretation but rather in light of copyright law and precedent case law.

Before I begin, let me add an important caveat: I have no qualms with the GPL. I have always released - and will continue to release - under GPL anything I develop related to WordPress. I do so because I choose to do so, as a means of making even a minor contribution to a project from which I believe I have personally benefited. I do have issues with how the GPL-inheritance question has been handled - but those issues are out-of-scope for this post.

Having (hopefully) made that point clear, let's begin!

What US Copyright Law Says

US Copyright law defines a "derivative work" as such:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Note the key adjectives: recast, transformed, and adapted.

Consider also Section 102(b), which states:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

This clause establishes the boundary around copyright between copyrightable expression, and non-copyrightable ideas.

Summarizing GPL Inheritance Requirements

To summarize GPL requirements regarding license inheritance for derivative works 1:

  1. The GPL only applies to distribution of a (modified or unmodified) GPL-licensed work, or a derivative work. Any activity involving use, modification, or creation of derivative works that does not involve distribution is outside of the scope of the GPL.
  2. Distribution of a (modified or unmodified) GPL-licensed work, or a derivative work, requires that such distribution be licensed under GPL.

The GPL is what is now referred to as a "copyleft" license: a modified public-domain license that takes advantage of the exclusive rights granted by copyright law to prevent derivative works from being restrictively licensed. Since the copyright owner has exclusive right to produce and to distribute derivative works based on the copyrighted work, the GPL intends to grant unlimited usage rights (to use, study, modify, etc.) to the end-user, while forcing follow-on developers of derivative works to release those works under the same license.

It is important to understand that, because the GPL explicitly defines any activity not involving distribution to be out of the scope of the license, and since right of distribution is solely derived from copyright law, that GPL derives its legal basis from copyright law alone. This distinction separates the GPL from most other traditional software licenses, which derive their basis for usage and modification restrictions not from copyright law, but from contract law.


  1. WordPress is released under GPL version 2.0. I'll try to summarize below the parts of the license germane to derivative works.

    First, from the Preamble:

    The reason we have a separate public license for some libraries is that they blur the distinction we usually make between modifying or adding to a program and simply using it. Linking a program with a library, without changing the library, is in some sense simply using the library, and is analogous to running a utility program or application program. However, in a textual and legal sense, the linked executable is a combined work, a derivative of the original library, and the ordinary General Public License treats it as such.


    The precise terms and conditions for copying, distribution and modification follow. Pay close attention to the difference between a "work based on the library" and a "work that uses the library". The former contains code derived from the library, while the latter only works together with the library.

    Terms and Conditions, Clause 0:

    The "Library", below, refers to any such software library or work which has been distributed under these terms. A "work based on the Library" means either the Library or any derivative work under copyright law: that is to say, a work containing the Library or a portion of it, either verbatim or with modifications and/or translated straightforwardly into another language. (Hereinafter, translation is included without limitation in the term "modification".)

    Terms and Conditions, Clause 2:

    These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Library, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Library, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

    Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Library.

    Terms and Conditions, Clause 5:

    A program that contains no derivative of any portion of the Library, but is designed to work with the Library by being compiled or linked with it, is called a "work that uses the Library". Such a work, in isolation, is not a derivative work of the Library, and therefore falls outside the scope of this License.

    However, linking a "work that uses the Library" with the Library creates an executable that is a derivative of the Library (because it contains portions of the Library), rather than a "work that uses the library". The executable is therefore covered by this License. Section 6 states terms for distribution of such executables.

Judicial Malfeasance and Bills of Attainder

Filed in PoliticsTags: ACORN, Constitutional Rights, Judiciary, SCOTUS, Separation of Powers

When the US Congress last year voted overwhelmingly to cut off federal funding of ACORN, one may have believed that Congress was exercising its constitutional authority to legislate the appropriation of government funds. According to activist liberal District Judge Nina Gershon, one would be wrong.

ACORN sued the US Government, claiming that the de-funding legislation constituted a bill of attainder, the issuance of which, per Article I Section 9 of the US Constitution, Congress is expressly prohibited. Unsurprisingly, Judge Gershon agreed, and in December issued a temporary injunction against the congressional ACORN funding ban. Yesterday, she made that injunction permanent.

Historical and Constitutional Context

First, some background on bills of attainder. Here is the general definition:

attainder n. The loss of all civil rights by a person sentenced for a serious crime. [< OFr. attaindre, to convict]

TechLawJournal goes into more detail:

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."  U.S. v. Brown, 381 U.S. 437, 440 (1965).

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted.  A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment."  William H. Rehnquist, The Supreme Court, page 166.

Bills of Attainder and The Supreme Court

The Supreme Court of the United States (SCOTUS) has construed several cases as representing bills of attainder.

  • In Ex Parte Garland (1866), SCOTUS held that a law that prohibited Civil War opponents from holding public office constituted a bill of attainder.
  • In Cummings v. Missouri (1866), SCOTUS held that the amendment of the Missouri Constitution to require an Oath of Loyalty constituted an ex post facto law that prohibited the plaintiff from practicing his profession, and constituted a bill of attainder as punishment without trial.
  • In US. v. Lovett (1946), SCOTUS held that the withholding of appropriation of salaries of government workers because of their involvement with the Communist party constituted a bill of attainder. Interestingly, the concurring opinion, which concludes that the section in question is not a bill of attainder, discusses the historical meaning and context of bills of attainder, and includes this statement:

    "There was always a declaration of guilt either of the individual or the class to which he belonged."

    And again:

    "But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder. No offense is specified and no declaration of guilt is made."

    And finally:

    When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.

    (I quote extensively from Lovett, as it is largely upon this decision that Judge Garshon bases her opinion.)

  • In US v. Brown (1965), SCOTUS held that a law that prohibited members of the Communist party from holding office in labor unions constituted a bill of attainder. In issuing his decision, Chief Justice Warren included several other historical examples of bills of attainder, including capital punishment, confiscation of property, corruption of blood (confiscation of one's estate such that it cannot be passed on through inheritance), banishment, disenfranchisement, and exclusion from holding public office. Warren also expressed that the historical context of the Bill of Attainder clause was intended to enforce the separation of powers and to prevent tyranny by preventing trial by legislature and punishment without trial.
  • In Nixon v. Administrator of General Services (1977), SCOTUS held that a law requiring former president Richard Nixon to preserve certain presidential papers and effects did not constitute a bill of attainder, finding that:

    While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.

    Further that:

    The Act's specificity in referring to appellant by name does not automatically offend the Bill of Attainder Clause.

    (These providing useful limits on the constitutional scope of the Bill of Attainder clause.)

  • In Selective Service Administration v. Minnesota PIRG (1984), SCOTUS held that a law requiring proof of registration with Selective Service in order to be eligible for federal student aid did not constitute a bill of attainder. An important finding:

    Section 12(f) does not inflict punishment within the meaning of the Bill of Attainder Clause. It imposes none of the burdens historically associated with punishment. It does not even deprive appellees of Title IV benefits permanently, since it leaves open perpetually the possibility of qualifying for aid.

    Note that this finding includes limiting the scope of attainder to "the burdens historically associated with punishment".

Summary of SCOTUS Definition and Scope of the Bill of Attainder Clause

Thus, one can readily understand the five-pronged test applied to determine applicability of the Bill of Attainder clause:

  1. A legislative act of Congress (or of a State)
  2. Specifying a readily identifiable individual or group
  3. Declaring the guilt of the person or group regarding a specific offense
  4. Enacting an attainder - or punishment - against the person or group specified
  5. For which that person or group has not been convicted in a judicial trial

To offend the Bill of Attainder clause, a law must declare the guilt of a person or group regarding  a specific offense, and must then enact an attainder in response to that guilt. As is demonstrated in the above-referenced SCOTUS decisions, the concept of "attainder" consists of "the burdens historically associated with punishment" - those burdens being generally the deprivation of life, liberty, or property; corruption of blood; disenfranchisement; prohibition from holding public office; or prohibition from earning a living by practicing one's profession.

Further, SCOTUS holds that the mere act of calling out a specific person or group does not offend the Bill of Attainder clause.

These points are crucial to understanding the constitutionality (or lack thereof) of Judge Gershon's ruling.

The ACORN Ruling

Returning to the ACORN ruling, the crux of the plaintiffs' argument can be found on page 9:

Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum, has paid, or has agreed to pay, for work already performed under existing contracts. They contend that congressional suspension of existing contracts and the denial of the opportunity to obtain future contracts amounts to punishment that violates the Bill of Attainder clause.

Gershon quotes from Nixon v. Administrator of General Services to define a bill of attainder as:

...a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.

She then explains the three-pronged test to determine if a statute "directed at a named or readily identifiable party" is punitive:

[F]irst, "whether the challenged statute falls within the historical meaning of legislative punishment"; second, "whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further non-punitive legislative purposes," an inquiry sometimes referred to as the "functional test"; and third, "whether the legislative record evinces a legislative intent to punish."

Of course, in quoting these criteria from Consolidated Edison Company of NY, Inc. v. Pataki, (Con. Ed.) she gives herself an out. Further quoting:

A statute "need not fit all three factors to be considered a bill of attainder, rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim."

(Notice that Gershon quotes not from SCOTUS - from which ample clarification of the definition and scope of the Bill of Attainder clause have come - but rather from a Second Circuit Court of Appeals decision.)

Historical Meaning of Legislative Punishment

Having laid the groundwork, Gershon then proceeds to explain how the ACORN defunding constitutes a bill of attainder. To do so, she quotes liberally from Lovett, in an attempt to conflate the denial of duly earned salary of a government employee to the prohibition of issuing federal contracts to ACORN.

The first problem with this conflation is that, in Lovett, the plaintiffs were duly employed government workers, and the law in question effectively fired them against the wishes of their employing agencies. On the other hand, ACORN is simply a government contractor: an agency attempting to procure government grants and contracts. Thus, the government-employee plaintiffs in Lovett had a reasonable expectation not to remain employed - even a right not to be fired without cause, while ACORN has no reasonable expectation of being granted future government grants or contracts - much less a right to the same.

Gershon attempts to avoid this obvious distinction by invoking a future opportunity claim:

The government attempts to distinguish Lovett on the ground that the plaintiffs in that case had a "vested property interest" in their jobs, whereas here, as plaintiffs unequivocally acknowledge, the have no right to the award of a grant or contract from the federal government. but the Court in Lovett did not base its decision on property rights analysis. The Supreme Court found a deprivation amounting to punishment under the Bill of Attainder clause, not only because plaintiffs were derived of their earned income from existing government jobs, but also because they were deprived of any future opportunity to serve the government. As the Court stated, "[t]his permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type." Id That plaintiffs had no right to any particular job was of no moment.

Gershon's reasoning here is faulty. The government employees in Lovett were clearly "serving the government" in their employment. ACORN clearly was not. If anything, the government was providing a benefit to ACORN, through the awarding of grants and contracts.  Further, the government work in which the Lovett plaintiffs were employed constitutes a chosen vocation, from which the statute in question effectively barred the plaintiffs. The ACORN defunding in no way can be construed to have, effectively or otherwise, barred ACORN from its chosen vocation - that vocation ostensibly being voter advocacy, and low-income housing and mortgage counseling.

Gershon then attempts to explain how Selective Service Administration v. Minnesota PIRG is not applicable:

Further, unlike the plaintiffs affected by the statute at issue in Selective Service, plaintiffs here cannot avoid the restrictions imposed upon them. Nothing in the challenged provisions affords plaintiffs an opportunity to overcome the ban.

Again, Gershon's reasoning is faulty. The federal funding ban imposed upon ACORN does not prevent ACORN from engaging in its chosen vocation. ACORN still retains the same rights of every other business in the country, to secure funding or to solicit funds through any other means in the private sector. The inherent implication in Gershon's argument here is that ACORN has a right to government funding. To wit, Gershon then quotes from Nixon and makes the following assertion:

"[I]t has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit...The very specificity would mark it as a punishment, for there is rarely any valid reason for such narrow legislation[.]"

Accordingly, a close reading of the cases indicates that a deprivation of the opportunity to apply for funding in fact fits comfortably within the definition of "punishment" for bill of attainder purposes.

Quite to the contrary, the referenced cases are quite explicit regarding the scope of a "punishment" for bill of attainder purposes. That scope includes deprivation of life, property, or liberty (for example, to pursue a chosen vocation, to vote, to hold public office). Deprivation of the opportunity to apply for public funding in no way resembles the clear scope of a bill of attainder punishment as determined by SCOTUS.

If anything, deprivation of the opportunity to apply for public funding as a claim not against the Bill of Attainder clause, but rather the Due Process clause. However, the plaintiffs have not raised a Due Process claim. In fact, as quoted from Lovett (upon which Gershon relies heavily in her decision) above, the Bill of Attainder clause specifically excludes the sort of general, broad matters encompassed in the Due Process clause [emphasis added]:

When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.

Thus, plaintiffs may argue that deprivation of the opportunity to apply for public funding is unfair, and a violation of Due Process and/or Equal Protection - but that deprivation is clearly and explicitly not a legislative punishment as evinced by the Bill of Attainder clause.

Functional Test and Legislative History

Next, Gershon moves on to explaining why the statute is punitive. I see no need to discuss either the functional test or the legislative history, as without a justifiable bill of attainder punishment, the question of the punitive nature of the statute is irrelevant. Without a legislative punishment, the statute by definition cannot be punitive.

Failing the Bill of Attainder Test

The ACORN defunding ban fails the Bill of Attainder test on two counts:

  1. Declaring the guilt of the person or group regarding a specific offense
  2. Enacting an attainder - or punishment - against the person or group specified

The matter of legislative punishment has been discussed already. However, Gershon's decision doesn't even address that the statute in question neither names an offense committed by ACORN nor declares ACORN' guilt with respect to such offense. The historical and constitutional context of the Bill of Attainder clause is quite clear that declaration of guilt of a specified offense is required for a statute to be considered to be a bill of attainder. Recall the statement from the concurring opinion in Lovett, upon which Gershon relies heavily in her opinion:

“There was always a declaration of guilt either of the individual or the class to which he belonged.”

This point is quite clear - and that the ACORN statute fails to meet this criterion is equally clear. Had the government, as a result of the ACORN statute, not fulfilled its current contractual obligations to ACORN, then plaintiffs would have had an ex post facto argument; however, as Gershon explains at the beginning of her decision, the government has agreed to fulfill all contractual obligations, and ACORN is not pursuing an ex post facto argument.

Over-Stepping Separation of Power

Having ruled in favor of ACORN, Gershon then issues her ruling, which essentially permanently enjoins all listed plaintiffs (HUD, OMB, Treasury, Commerce, DOD, and EPA) against enforcing (or instructing their subordinates to enforce) the ACORN statute. As a reminder, this statute reads:

None of the funds available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.

Essentially, as the order is written, if any of the listed government agencies denies any future grant or contract to ACORN, it can be accused of violating Judge Gershon's order. In other words, Gershon has just granted ACORN a constitutional right to public funds.

Unfortunately for Judge Gershon, the Constitution grants the right of appropriation of public funds to the Legislature, not to the Judiciary.

BigGovernment.com explains further:

It’s noteworthy that in discussing the Bill of Attainder Clause of the Constitution, the district court failed to discuss at all the Appropriations Clause. That provision states that, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” In other words, only Congress can dole out federal dollars.

The court fails to consider whether it has the authority to order the executive branch (the Treasury Department) to continue giving federal dollars to ACORN after the legislative branch (Congress) with sole possession of the power of the purse has specifically passed a law barring any such appropriation. This opinion doesn’t even raise the separation-of-powers issue of a court dictating federal spending.

By enjoining every government agency with any contact with ACORN against denying ACORN any public funds, Gershon has compelled the Legislature to appropriate funds against the expressed prerogative of the Legislature. Further, this ruling sets the precedent for any other government contractor for whom a contract (or grant) is cancelled, or not renewed, to petition the courts on a Bill of Attainder claim.

This ruling is a clear case of liberal judicial activism and malfeasance, and represents a frontal assault on the Constitution. Surely SCOTUS will vacate this decision and put Judge Gershon in her place - although, after such a decision, her place is off the federal bench entirely.

Ninth Circuit: All Your Laptop Are Belong To Us

Filed in Social IssuesTags: Constitutional Rights, Judiciary

The Ninth Circuit Court of Appeals yesterday reversed a lower court's decision that laptop searches by border agents are a violation of the Fourth Amendment. From the WSJ law blog:

The backstory: In July of 2005, Michael Arnold, who was 43 at the time, was pulled aside for secondary questioning upon arriving at LAX from the Philippines. Customs agents checked out his laptop and, according to the ruling, found “numerous images depicting what they believed to be child pornography.”

Arnold was later charged with possessing and transporting child porn and with traveling to a foreign country with the intention of having sex with children. But lower court Judge Dean Pregerson of Los Angeles suppressed the evidence after finding that customs agents didn’t have reasonable suspicion to search the contents of Arnold’s laptop.

The Ninth Circuit, in an opinion penned by Judge Diarmuid O’Scannlain, reversed on Monday, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”

In reading the decision, my initial reaction is that while the conclusion is ultimately wrong (opening files on a laptop without reasonable suspicion is clearly a violation of the Fourth Amendment, regardless of what precedent rulings exist), the defendant chose an absolutely absurd defense. It is that absurd defense that is the basis of the court's decision.

Arnold based his defense on two arguments: one, that the laptop is an extension of the human body (since it contains data in the same way that the human mind contains ideas) and thus is protected from unreasonable searches, and two, that the laptop is analogous to a person's "home" (due to the capacity of the data storage and thus is protected from undue damage or destruction during a search.

Given the two prongs of this defense, I can understand how the Ninth Circuit would reverse.

I'm no lawyer, but in my opinion, a much more sound defense would have been that viewing personal data without cause or suspicion is an unreasonable search, even at the border. The Ninth Circuit's decision references United States v. Tsai (border searches of briefcases) and United States v. Ickes (border searches of vehicles, and electronic devices contained therein) as precedent that the defendant was not subject to unreasonable search.

Recall the words of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Apparently, the courts have ruled that "searches made at the border...are reasonable simply by virtue of the fact that they occur at the border", under the justification that "...the United Stats, as Sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity" (United States v. Flores-Montano). Similarly, the Supreme Court (United States v. Ramsey) has held that:

The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry.

The issue, however, is that these searches are not appropriately bounded. While it is reasonable for a border agent to require a passenger to turn on a laptop to ensure that all its components are legitimately part of a laptop (e.g. the battery is not actually some sort of bomb), it is in no way reasonable for that border agent to rummage through the files contained on that laptop without reasonable cause.

Essentially, the justification by the courts here is that, since some things are illegal in the US but are legal elsewhere, any traveler could have legally obtained something that is illegal in the US, thus everything is subject to search at the border, and that the search takes place at the border establishes that such searches are reasonable.

Basically, this justification completely guts the Fourth Amendment. It is as if the courts are saying, "check your Constitution at the border."

Arnold should have challenged the unconstitutionally broad application of conferring reasonableness on searches simply by virtue of their occurrence at a border entry.

Another reasonable argument would have been the court's equation of a laptop to a traveler's luggage. The contents of luggage is in no way inherently analogous to the contents of a laptop (or of an MP3 player, a digital camera, or camcorder).

Oh, and as others have said: TrueCrypt. Either encrypt your entire drive, or put all private data inside an encrypted partition. If the courts won't uphold the Fourth Amendment, then perhaps the Fifth Amendment will still apply, and you'll still be protected from being forced to divulge your password for your encrypted data.

Volokh Conspiracy has a lot of interesting commentary. Dailybreeze also covers the story.

(H/T: PCWorld)

Scalia KOs Stevens

Filed in Politics, Social IssuesTags: Judiciary

The Supreme Court, in a 7-2 decision in Baze v. Rees, confirmed that lethal injection does not violate the 8th Amendment as cruel and unusual punishment.

As relieved as I am to note that SCOTUS has not lost all common sense (it does not take a Constitutional Law degree to come to the conclusion that a) the Constitution explicitly permits the death penalty, and b) lethal injection is neither cruel nor unusual, therefore c) lethal injection does not violate the 8th Amendment), I was particularly impressed by Justice Scalia's takedown of Justice Stevens' concurring opinion, in which he argues that in his experience the death penalty has not benefited society and that the death penalty is unconstitutional. Here's an excerpt of Scalia pointing out Stevens' judicial activism and illogic:

But actually none of this really matters. As JUSTICE STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ . . . I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional."

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” It is JUSTICE STEVENS’ experience that reigns over all.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views—which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution

God bless Justice Scalia!

(H/T: RedState, which you should read for the full, color commentary.)


Filed in PoliticsTags: Judiciary

The confirmation hearings for Supreme Court nominee Samuel "Alioto" Alito began today. Alito's opening remarks were humble, self-deferrential, at times funny, and well-delivered. Money quote:

When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client.

The judge’s only obligation — and it’s a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.

And again:

And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.

Nothing else needs to be said. Confirm him. Now!


Filed in PoliticsTags: Judiciary

So says ConfirmThem, who also point out that 19 sitting Democrat senators participated in his unanimous-consent confirmation to the 3rd Circuit Court of Appeals. The announcement could come as early as Monday, according to RedState. Volokh Conspiracy has some more insight into Alito, also.

Just Desserts

Filed in PoliticsTags: Judiciary

Michelle Malkin mentioned this bit of ironic justice yesterday:

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

File this one under "adding injury to insult."

And in an attempt to drive home the message:

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

I would love to see this request make its way to the Supreme Court...

Liberals Admit: Fascism Far Left

Filed in PoliticsTags: Judiciary

As Michelle Malkin points out, the 'sphere has been up in arms in reaction to this week's usurpation of the Fifth Amendment by SCOTUS in Kelo v. City of New London.

Amazingly, the Left and Right sides of the 'sphere seem to have found one of those rare issues on which to agree. However, as is to be expected from the Blame Bush crowd, the Libs - such as Bree Walker writing at the already blaming Bush for this decision:

Probably no one is really surprised at how The Supreme Court pushed its' "eminent domain" authority to the limit with this latest ruling which gives cities unprecedented power to bulldoze even "non blighted" areas for local revenue. In fact, we should all be used to our growing Fascism by now. Corporate rule of government will continue under this administration because there's no one out there in mainstream media allowed to call it what it is; Fascism, plain and simple.

[Skipping over a bunch of filler crap...]

It's probably just a matter of time before we bloggers get our gag orders first from the D.C gang and then ultimately, from China, once the Administration finds a way to sell us all out. Another sad day in America. But hey, at least those Chinese know how to run a government, even if it's the opposite of Fascism. Who knows? Maybe American Communism is the court of last resort for our droned out, dumbed down, tuned out, Hippie Capitalist population. I know I'm damned tired of watching the alternative loom larger everyday.

Before I go any farther, let me just point out President Bush's consistent stance on the Judiciary (as excerpted by ConfirmThem):

[A]s Chief Justice Hughes has said, “We are under a Constitution, but the Constitution is what the judges say it is.” The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third House of the Congress — a superlegislature, as one of the justices has called it — reading into the Constitution words and implications which are not there and which were never intended to be there.

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution — not over it. In our courts we want a government of laws and not of men.

I want — as all Americans want — an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written — that will refuse to amend the Constitution by the arbitrary exercise of judicial power — amendment by judicial say-so.

President Bush has consistently stated that he wants - and has nominated nominated - strict constructionists on the bench.

[EDIT: Mea culpa. I should have followed the link. The quote above is actually from an FDR fireside chat. Here's a quote from President Bush, during one of the 2004 presidential debates:

I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.

Let me give you a couple of examples, I guess, of the kind of person I wouldn't pick.

I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words under God in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.

Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

And I suspect one of us will have a pick at the end of next year -- the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.

(That's the first quote I came across in a quick search; point being, Bush's views are the same as what was excerpted from FDR above.]

Once more, for the record, this abomination came down to a 5-4 decision - FOR: Stevens, Kennedy, Souter, Ginsberg, Beyer; AGAINST: O'Conner, Rhenquist, Scalia, Thomas. In other words, those ideologically aligned with the current Administration OPPOSED the ruling, while those ideologically aligned with Bree Walker formed the majority opinion.

I'll agree, infringing on personal property rights in such a manner is fascist. (Actually, eminent domain for private-sector use is more correctly socialist, given the redistribution of property. The underlying judiciary fiat, on the other hand, is clearly fascist.) However, to blame the fascism through Judicial fiat on Conservatives in general, and President Bush in particular, is preposterous and intellectually dishonest.

Bush keeps sending up judiciary nominees to protect our republic from such judicial activism, and the Liberals' sole litmus test is the nominee's stance on Roe v. Wade - a SCOTUS decision that , ironically, clearly was a result of gross judicial activism, and something the Senate Judiciary Committee is being forced to discuss, given the expected Supreme Court vacancies upcoming. The bottom line is, this action by SCOTUS is clearly in line with the Liberal view of the Judiciary. I was taught in high school History (excuse me, Social Studies) that Communism was the extreme of the Liberal POV, and Fascism was the extreme of the Conservative POV. Of course, I argued against that alignment even then. The extreme of the Conservative POV would more rightly be Anarchy, since the "spectrum" in question is one of balance of power and responsibility between the individual and government/society. If the left extreme is no personal freedoms, and complete control by society/government, then the right extreme is unchecked personal freedoms, and no control/existence of government/society.

But I digress... my point is this: Bree Walker just admitted - perhaps unknowningly - that Fascism is, in fact, an outcome of the LIBERAL ideology.

Need any more reason to implore President Bush to keep nominating strict constructionists (especially to the Supreme Court), and also to implore your Senators to support Bush's nominations?

In Defense of Old Glory

Filed in Politics, Social IssuesTags: Judiciary

Yesterday, the US House of Representatives passed by 286-130 a Constitutional Amendment authorizing Congress to ban the desecration of the American Flag.

Several of my Conservative brethren would brand me as an extremist for supporting the measure. The arguments generally include:

  • Flag-burning is an exercise of freedom of speech, which is a Constitutionally protected right,
  • Expression is the same as speech, in terms of Constitutional limitations on abridgement of rights,
  • Banning flag-burning will lead to banning the exercise of speech and expression in legitimate forms of protest,
  • Giving Congress power to ban flag burning violates the entire embodiment of rights enumerated in the Bill of Rights.

These arguments - which I will address shortly - miss the point entirely. American Flag burning has no place in civilized society. Granted, anti-Christian, anti-Semite, America- and Israel-hating Muslim fascists take great joy in burning the flags of both the USA and Israel; but to that point I respond: 1) see my previous statement, and 2) perhaps those who would burn the American flag here in the US have much in common with those fanatics.

It is completely illogical to exercise one's freedom of expression by protesting the symbol of the guarantee of that very right of expression. The United States of America is the beacon of Democracy and the epitome of civilized society. Political dissent has been defended passionately since Bostonians turned the Harbor into the world's largest cup of tea. Political (especially, minority - since protecting majority rights is not really an issue) dissent is one of the roots of the limitation on Congress to abridge the freedom of the people - freedom of religion, speech, press, assembly, keeping and bearing arms, property, etc. These freedoms all embody myriad means of expressing dissent, including private and public speaking, publishing (dead-tree and internet), artistic expression, protest assemblies, or expatriating oneself. Burning the American Flag is not among their number.

That's not to say that flag-burning never has inherent purpose. Burning a flag that symbolizes a tyrannical government that suppresses basic human freedoms is a perfectly legitimate and germane protest of the tyranny and suppression embodied by the flag. So, an Iranian who protests his government by burning the flag of Iran expresses a perfectly consistent statement. Only someone insane, or who hates America (or both) would attempt a serious correlation between an oppressed subject of a tyrannical regime burning the flag symbolizing tyranny to an American living in the most free society in the history of mankind burning the flag symbolizing the passionate and self-sacrificial defense of freedom.

A democratic society provides a means for the governed to hold government accountable. Representatives are subject to regular elections. Elected officials face recall or impeachment when warranted. Executive branches at nearly all levels of government are subject to term limitation. Legitimate means of protest against elected officials include watch-dog activities holding officials accountable to what they do and say while in office, formation of Political Action Committees and lobbyist groups, active campaigning against an incumbent, active campaigning for a challenger, or running for office oneself. Burning the American Flag contributes nothing to any of these endeavors.

Apparently, I am not alone in my assertion that burning the American Flag has no place in a civilized America. From the same article:

The measure was designed to overturn a 1989 decision by the Supreme Court, which ruled 5-4 that flag burning was a protected free-speech right. That ruling threw out a 1968 federal statute and flag-protection laws in 48 states. The law was a response to anti-Vietnam war protesters setting fire to the American flag at their demonstrations.

Again, what we really have is a Constitutional-amendment band-aid to reassert the right of the legislative branches of our Federal and State governments to legislate according to the will of the majority, against judiciary fiat - in this case, SCOTUS trumped the legally and legitimately expressed will of the citizens of 48 States, and and Federal statute. I will concede that I would much prefer that the wording of the amendment guarantee the right of the States to govern themselves with respect to the prohibition of the physical desecration of the American flag; however, even the wording as rendered would restore that right to the States, whether or not the US Congress ever chooses to pass legislation prohibiting physical desecration of the American flag.

To further illustrate the will of the people, consider this collection of (ten-year old) polls concerning support for or against flag burning as free speech.

To be honest, I'm extremely tired of attempts to justify flag burning as protected free speech. Just for reference, here's the wording of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

First point: the reference to freedom of expression, as written in the First Amendment, directly correlates to religion. Note the use and location of the comma, semi-colon, and the word "thereof", which corresponds "expression" to "religion". Thus, while I am no Constitutional or legal scholar, I do understand basic rules of grammar and can say that arguments that the First Amendment protects a carte blanche freedom of expression are baseless.

Next, I would like to reiterate the definition of "speech":


    1. The faculty or act of speaking.
    2. The faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words.
  1. Something spoken; an utterance.
  2. Vocal communication; conversation.
  3. A talk or public address: “The best impromptu speeches are the ones written well in advance” (Ruth Gordon).
  4. A printed copy of such an address.
  5. One's habitual manner or style of speaking.
  6. The language or dialect of a nation or region: American speech.
  7. The sounding of a musical instrument.
  8. The study of oral communication, speech sounds, and vocal physiology.
  9. Archaic. Rumor.

Of all the definitions of speech, one common thread is clear: speech involves or originates from oral communication. Speech can be concurrent with Flag Burning, but the act of flag burning itself is not inherently "speech".

As for the right of government to abridge the freedoms embodied in the Bill of Rights, the prohibition of flag desecration would certainly not set a new precedent. A civil society should, can, and does impose reasonable limits on the exercise of personal freedoms. For instance, the Supreme Court has upheld that expressing intimidation via cross burning is not Constitutionally protected free speech. (And here's a liberal's attempt to compare and contrast cross and flag burning.) Further, speech that presents a "clear and present danger" (e.g. shouting "Fire" in a crowded theater:

As I pointed out, the excuse normally given by the government for oppression is that of necessity. This was precisely the reason given in 1919 when the Supreme Court ruled in Schenck v. U.S. that speech could be forbidden if it presents a “clear and present danger.” It was this same ruling that put the “shouting fire in a theater” test into the public conception of the parameters of free speech. Justice Oliver Wendell Holmes wrote:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206 S., 25 Sup. Ct. 3. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 439, 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Although subsequent decisions went on to clarify that a “clear and present danger” was limited to violent actions and not political advocacy, that was not before this case was used as justification to imprison political dissidents. In any case, the idea was planted in the people’s mind that speech could be limited by the government, as long as the reason was good enough.

Yet again, speech intended to incite a riot is not Constitutionally protected free speech. Obscenity, child pornography, libel, perjury, contempt of court, and false advertising - these are all also not Constitutionally protected free speech. What about freedom of expression of religion? Even under the guise of religious freedom, polygamy, pedophilia, bestiality, public nudity and obscenity, and any other of a number of forms of "expression" (including oppression of women and children and beheading of "infidels") are not Constitutionally protected.

The reason that American Flag desecration should be prohibited is not because it offers no inherent value or benefit to discussion of issues or political dissent in civilized society; it should be prohibited because it is an act of political dissent so base that it inherently incites violence and hatred, and aids, abets, and offers comfort to the enemies of the United States in times of war. Burning the flag is an act that illicits passion and emotion and stifles reasoning; thus flag burning is actually detrimental to civilized discourse.

The American Flag symbolizes everything that is America - the good and the bad. More importantly, though, the flag represents a system of governance of, by, and for the people - a system of checks and balances, and a system of self-correction. The American Flag symbolizes a system in which the majority must recognize and protect the rights of the minority, a system in which mistakes and grevious wrong-doing alike are exposed, rooted out, and atoned for from within. The Flag represents a system that provides the mean to be changed; a political dissident can change the system if gathers enough support - and that change comes peacefully, through the process defined by the system.

Thus, to burn the flag is to protest the most advanced, the most peaceful, the most civilized, the most humane, and the most successful means of changing the system of government by the governed in all of history. To burn the flag is effectively to end any discussion or debate that would otherwise come out of civilized political dissent. To burn the flag is to protest the sacrifice of thousands of American men and women who have fought - and died - to defend the freedoms symbolized by the Flag.

Having said all that, I don't really expect the measure to pass the Senate. It is doubtful that it has the 2/3 majority support:

A day after a proposed constitutional amendment to outlaw flag-burning cleared the House, an informal survey by the Associated Press suggested the measure lacks enough Senate votes to pass.

The 286-130 outcome in the House was never in doubt, and amendment supporters expressed optimism that a Republican gain of four seats in last November's election could produce the two-thirds approval needed in the Senate, as well, after four failed attempts since 1989.

But an AP survey yesterday found 35 senators on record as opposing the amendment — one more than the number needed to defeat it, barring a change in position.

Apparently, the American Flag Blog agrees, in reaction to an opinion piece by one Sandi Webb.

I will probably re-visit the issue later, mainly to take on more of the arguments against prohibiting flag burning.

I Love Ann

Filed in PoliticsTags: Judiciary, Republicans

Ann Coulter nails the idiocy of the Seven Nitwits:

The deal they struck, this masterful Peace of Westphalia, simply put into writing the rule that the minority party controls the Senate — which will remain the rule until the Democrats aren't the minority party anymore.

If the Democrats had a 10-vote majority, you can be sure they wouldn't cow-tow to the Republicans under the guise of "minority rights", "Senate tradition of deliberation", and "fundamental checks and balance". They would ram through their Liberal agenda - hard.

Kinda like what the American people want the Republicans to do with a Conservative agenda, as Ann points out:

But even so, didn't we win the last election? Why, yes, we did! And didn't we win a majority in the Senate? Yes, we did! To be precise, Republicans have won a majority of Senate seats the past six consecutive elections. (And the last six consecutive elections in the House of Representatives, too!)

I think that means Republicans should win. Republican senators support Bush's nominees and Democratic senators oppose them. The way disagreements like this are ordinarily sorted out in a democracy is that a vote is taken among our elected representatives, and majority vote wins.

If the Senate Republicans can't get it done, I have a two-word suggestion: Recess Appointments.