by TChris

The Texas redistricting Tom DeLay masterminded in 2003 might be his political undoing. Wouldn't the irony be insanely rich? (Of course, DeLay's indictment and corrupt behavior also play a role in his fate.)

When the new maps were drawn, Mr DeLay allowed some of the reliably Republican areas in his district to be included in neighbouring areas, "so he could get more Republican districts around him", said Gary Keith, a government professor at the University of Texas at Austin. "It has made him more vulnerable."

Recent polls confirm this, with Mr DeLay struggling against Nick Lampson, his Democratic challenger. Mr Lampson knows better than most what is at stake in the redistricting battle. He was one of the Democrats who lost his House seat after the Republican redistricting.

The Supreme Court will hear arguments Wednesday in a challenge to the redistricting scheme.

by TChris

The Supreme Court was widely expected to take up a challenge to the constitutionality of a federal law that bans late term abortions.

The "partial birth" ban, enacted in 2003, has been invalidated by three different federal appeals courts on the grounds that the ban did not include an exception for cases when the health of the mother might be at stake and constituted an undue burden on the right to abortion.

The Court today accepted review of Gonzalez v. Carhart, an Eighth Circuit case that found the ban unconstitutional. Court watchers expect Justice Alito to be the deciding vote in Carhart.

Kevin Drum reports there have been 47 constitutional amendments proposed in the last year. He lists them all.

The Constitution is not a rough draft. We don't need any of them.

by TChris

As a general rule, the federal government shouldn’t be in the business of micro-managing a school’s curriculum, even if the school receives federal funding. Still, it’s easy to understand Senator Byrd’s frustration that schools have done a poor job of teaching the history and meaning of the United States Constitution.

In December he inserted into a giant spending bill a passage requiring every American school receiving federal money to teach about the Constitution on Sept. 17, the date it was signed in 1787.

Constitutional history is an unlikely subject at the massage and cosmetology schools that are subject to the law, and there are reasons to fear congressional interference with local control of schools. Do we want the federal government telling schools that they should teach intelligent design alongside, or instead of, evolution?

Byrd is nonetheless right to believe that people need to know more about the Constitution.

by TChris

In today’s NY Times Magazine, Jeffrey Rosen argues that John Roberts (who might serve for 40 years if confirmed to the Supreme Court) should be asked about “a Brave New World of constitutional disputes” that could arise during the coming decades. These include:

• Brain fingerprinting: Using neuro-imaging techniques to detect electro-chemical signals could reveal whether an interrogated subject is telling the truth. Would the Court view an involuntary brain scan as a nonintrusive gathering of information rather than a search governed by the Fourth Amendment? Would the Court view brain scans as forcing an involuntary disclosure of thoughts prohibited by the Fifth Amendment’s requirement that individuals not be made to testify against their will?

• Genetic screening: Would the Court decide that the right to procreation and to privacy in intimate decision-making outweighs a state’s interest in prohibiting the creation of “designer babies,” genetically engineered to weed out (for instance) homosexuality, or to assure a child of a preferred gender?

• DNA analysis: If affirmative action continues to pass constitutional muster under some circumstances, will a potential beneficiary of a race-based preference be entitled to rely on a DNA analysis showing the presence of genes that came from Africa?

Other topics: “Old Age and Drug Legalization” and “Property, Free Expression and the Right to Tinker.” Judge Roberts is unlikely to take a meaningful position on any of these issues (arguing that he shouldn’t prejudge any issue likely to come before the Court), but the article is a fun read for those who like to ponder the evolution of constitutional jurisprudence in the 21st century.

by TChris

The first six words of the Eighth Amendment: "Excessive bail shall not be required ...." Perhaps the Boston judge who set $250,000 bail for a 12 year old should look up the word "excessive."

Judge Paul D. Lewis railed against urban youth violence Tuesday after he set cash bail for the South End boy, who Boston police said was found with a loaded gun on Monday.

Urban violence is of concern to everyone, but setting excessive bail to "send a message" is an affront to the Eighth Amendment. The kid is charged with possessing a gun, not with shooting someone. He's presumed innocent of that charge, but even if he's eventually convicted, he faces no more than Department of Youth Services supervision until he's 18. He has no real incentive (and probably no ability) to flee, making it inappropriate to set high cash bail.

by TChris

The Supreme Court has struggled to develop a consistent Commerce Clause jurisprudence, balancing the federal legislature’s desire to enact sweeping regulation against the constitutional limits on federal power. Both the right and the left are dissatisfied with some of the Court’s Commerce Clause decisions, and Congress is irritated whenever the Court strikes down the legislation it enacts (as Arlen Specter recently made clear).

Speaking to the ABA, Justice Stevens admitted that he wasn’t happy with his vote to uphold federal regulation of pot growers who cultivate the plant for intrastate distribution as permitted by California's medical marijuana law. The Raich decision upheld the federal prohibition against a Commerce Clause challenge.

Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear."

by TChris

In this year's Miller-El decision, the Supreme Court found that Dallas County had impermissibly excluded blacks from Miller-El's jury. The district attorney for Dallas County assured everyone that if such racial exclusion had ever been a part of the prosecution's jury selection strategy, those practices were no longer tolerated.

And now for the truth, as uncovered by the Dallas Morning News:

Prosecutors excluded eligible blacks from juries at more than twice the rate they rejected eligible whites, The Dallas Morning News found. In fact, being black was the most important personal trait affecting which jurors prosecutors rejected, according to the newspaper's statistical analysis.

The Economist reports:

A Supreme Court ruling that allows the government to seize private property has set off a fierce backlash that may yet be as potent as the anti-abortion movement...IF YOU ever doubted the importance of the Supreme Court, consider the fuss about Kelo v New London. The five-to-four ruling by the court on June 23rd, apparently giving the government the power to bulldoze homes on flimsy grounds, has set off fiery protests across the country.

Americans used to believe that their constitution protected private property. The Fifth Amendment allows the state to seize it only for “public use”, and so long as “just compensation” is paid. “Public use” has traditionally been taken to mean something like a public highway. Roads would obviously be much harder to build if a single homeowner could hold out forever or for excessive compensation. The government's powers of “eminent domain” have also been used to clean up “blighted” slums.

Justice Anton Scalia, sounding like a Republican politician, reaffirmed his view that the Consitution is not a living, breathing document during a speech in Texas yesterday.

The Constitution, when it comes before a court, should mean exactly what it was intended to mean when it was adopted, nothing more, nothing less."

Scalia criticized the view that the Constitution is "a living document that reflects the values of the time."

Contrast this with the view of the late Justice William Brennan:

"The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs."

Nat Hentoff has a new column in the Village Voice on lack of commitment to the constitutional principle of equal protection. He says that Democrats need to do more than object to Bush's extremist nominees.

Moreover, since George W. Bush is very likely to name the next chief justice of the Supreme Court as well as one or two other replacements before the end of his second term, it is crucial for leaders of the Democratic Party, including future presidential aspirants, to do more than obstruct Bush's nominees. The Democrats have to tell the country what their criteria are for the Supreme Court and other life-tenured federal judges—instead of mechanically objecting to nominees for being "out of the mainstream."

by TChris

TalkLeft has criticized the Real ID Act, as did the New York Times this morning, in part because Congress "tied it to a crucial bill providing funds for American troops in Iraq and Afghanistan" to avoid debating the bill on its merits.

One reason (among many) that the Real ID Act deserves greater scrutiny is "a little-known provision that opponents say would be the first suspension of habeas corpus since the Civil War."

The immigration legislation, known as the Real ID Act, would bar noncitizens from the right of habeas corpus review in federal district courts for most detention and deportation orders. ... [The provisions] would mean anyone held in detention on immigration-related charges or purposes, except asylum seekers, could not file habeas claims.

"It really removes one of the core functions that habeas review has prevented historically, which is a safety valve against manifest injustice resulting from unlawful government action," said Marshall Fitz, the associate director of the American Immigration Lawyers Association. He acknowledged that the bill would provide an alternative recourse before U.S. courts of appeals, but that would be ineffective in many cases.