Author: admin

Everybody knows that the American courts exercise the power to evaluate the constitutionality of legislation and declare those laws that violate the Constitution to be legally void and of no effect. To a surprising degree, it has been unclear how often the courts have exercised that power.

The problem started at the beginning. The U.S. Constitution is clear about such basic governance issues as whether the president has the power to veto bills, whether Congress can override that veto, and how bills become law. The Constitution famously does not say that the federal courts have the power of judicial review; it merely says that the “judicial Power of the United States” shall be vested in the Supreme Court and any inferior courts that Congress might create.

It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803.  But Marshall did provide a compelling account of that power, and his opinion eventually became a touchstone for those seeking to explain, justify or criticize such a power.

Because the Constitution does not explicitly set out the power of judicial review, it has been far more contested and far less systematically accounted for than other such basic features of the American constitutional system as the presidential veto. Even the name “judicial review” is a modern invention, coined by the young Princeton constitutional scholar Edward Corwin at the beginning of the twentieth century to provide a shorthand description for the increasingly prominent activity of the courts in scrutinizing the constitutionality of duly enacted statutes. Corwin coined the term in the midst of a scholarly and popular debate over the origins, scope and legitimacy of the power of judicial review.

Among the issues in that debate was how often the U.S. Supreme Court had actually exercised the power of judicial review. The answers were surprisingly diverse. Since the Constitution did not specify that there was such a power of judicial review, it also did not specify the form by which it should be exercised. The Constitution specified that presidential vetoes should be recorded in the journal of each legislative chamber. The number of vetoes could be numbered and counted. There is no such requirement when the courts strike down a law as unconstitutional.

When, in 1792, the 2nd Congress first heard the news from a constituent that a federal judge had declared a federal statutory provision unconstitutional, there was a brief debate over what kind of response might be appropriate and whether a system needed to be put in place so that the legislature would be promptly informed when such actions were taken. But nothing was done. The courts made decisions and issued opinions, but no one designated instances of judicial review, reported such events to Congress, or put them down in an official record.

After the constitutional centennial, the Supreme Court’s reporter, Bancroft Davis, took it upon himself to compile a list of cases in which the Court had struck down an act of Congress as unconstitutional and included it in a historical appendix to a volume of the Court’s opinions in 1889. The Davis list proved to be controversial, and the historical debate over the incidence of judicial review was politicized. Populists and Progressives argued that the Court had rarely exercised the power of judicial review – and thus should rarely exercise it in the future since it was of dubious legitimacy. Conservatives argued that the Court had exercised the power of judicial review more often – and should keep on exercising it in the future to temper the passions of popular majorities. Some argued that John Marshall created the power of judicial review out of whole cloth and that the Court rarely dared exercise the power afterwards. Some went further and denied that even Marbury itself could properly be understood as an example of judicial invalidation of a federal law. Others argued that Marbury was just one of many instances of judicial review and was just one example of a venerable judicial practice.

Near the end of his career Edward Corwin played a big role in putting that debate to rest by compiling a now-canonical list of cases in which the Court invalidated a federal law. But Corwin’s list is wrong.

You’ll really know the rest of the story if you read Repugnant Laws. You’ll get another taste in a future blog post.

from Latest – Reason.com http://bit.ly/2X5C7cz
via IFTTT

Any hope that professional journalists may have had that the Justice Department’s prosecution of WikiLeaks founder Julian Assange would leave them and the First Amendment unscathed was decisively crushed by the indictment unsealed yesterday. While DOJ officials are still trying to assure reporters that the Trump administration values and respects their work (I know), it is now abundantly clear that the case against Assange is an unprecedented, sweeping, and deeply dangerous assault on freedom of the press.

“Some say that Assange is a journalist and that he should be immune from prosecution for these actions,” John Demers, the head of the Justice Department’s National Security Division, told reporters yesterday. “The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department’s policy to target them for reporting.” There is no need to worry, Demers suggested, because Assange is “no journalist.”

That distinction is not only debatable but constitutionally irrelevant, since “freedom of the press” refers to a method of mass communication, not a professional guild. It belongs to all of us, not just to people employed by respectable news organizations. Yet some of those people have endorsed this bogus distinction because they despise Assange, think they are entitled to special privileges because of their professional status and standards, and vainly hope their press passes will save them.

Assange, CNN contributor Frida Ghitis wrote last month, “is not a journalist and therefore not entitled to the protections that the law—and democracy—demand for legitimate journalists.” Washington Post columnist Kathleen Parker echoed that sentiment, endorsing the view that Assange is “a sociopathic interloper operating under the protection of free speech.” Real journalists, she said, go through “a lot of worry and process” before they publish embarrassing information that the government wants to keep under wraps. Assange, by contrast, “is not…a journalist, despite his claiming to be, because he isn’t accountable to anyone.”

The indictment highlights details that reinforce this view, noting that WikiLeaks published unredacted versions of Pentagon war documents and State Department cables that included names of informants who foreseeably could be arrested or killed once their identities were revealed. That kind of unethical sloppiness is indeed troubling, but it is not a necessary element of the charges Assange faces.

Counts 9 through 17 involve “disclosure of national defense information,” a felony punishable by up 10 years in prison. That penalty applies to anyone who “willfully communicates, delivers, transmits or causes to be communicated” such information to “any person not entitled to receive it.” This felony is the bread and butter of any journalist who covers national security issues and publishes information that the government would prefer to keep secret.

As First Amendment scholars have noted, that statute squarely applies to indisputably valuable journalism such as publication of the Pentagon Papers, the secret history of the Vietnam war that gave rise to the landmark 1971 Supreme Court case New York Times v. United States. In that decision, the Court unanimously ruled that the government could not prevent publication of stories based on the Pentagon Papers. But it did not address the question of whether publishers, editors, and reporters could be prosecuted after the fact. That is the question posed by the Assange indictment, no matter how much the Justice Department wants to pretend otherwise.

Count 1 alleges that Assange conspired to receive national defense information, and Counts 2 through 8 allege that he obtained it, all of which are likewise felonies punishable by up to 10 years in prison. Again, the indictment plays up conduct that most professional journalists avoid, such as publicly soliciting classified material (on the WikiLeaks website), asking for specific documents, and offering to help a source conceal his identity by cracking a government password. But these crimes do not require such unusual tactics. Any reporter who talks to a source with access to classified information, arranges to receive that information, and promises the source confidentiality is guilty of violating those provisions.

New York Times reporter Charlie Savage, who covers national security issues, understands all of that. “For the purposes of press freedoms,” he notes, “what matters is not who counts as a journalist, but whether journalistic activities— whether performed by a ‘journalist’ or anyone else—can be crimes in America.” Savage quotes Jameel Jaffer, director of Columbia University’s Knight First Amendment Institute. “The charges rely almost entirely on conduct that investigative journalists engage in every day,” Jaffer says. “The indictment should be understood as a frontal attack on press freedom.”

The Justice Department is hoping to blunt the backlash against that attack by picking a widely reviled figure as a test case. But anyone who actually believes in civil liberties understands that they mean nothing if they can be violated when the target happens to be unpopular. Just as the ACLU is not endorsing the views of Nazis or Klansmen when it defends their First Amendment rights, you don’t have to like Assange (or believe he is a real journalist) to recognize the importance of the principle at stake in his case.

from Latest – Reason.com http://bit.ly/2YKQ2oT
via IFTTT

The American Civil Liberties Union (ACLU) of Texas is suing the federal government for $100 million over the death of Claudia Patricia Gómez González.

In May 2018, an unnamed Border Patrol agent in the Laredo sector shot and killed González, a 20-year-old woman from Guatemala. The agency’s initial statement said that the agent fired his weapon in response to multiple “assailants” hitting him with “blunt objects.” The agency then updated its statement, saying that the 15-year veteran had ordered the group to the ground, then fired one round from his gun after they “ignored his verbal commands and instead rushed him.”

The ACLU’s lawsuit, which was filed on behalf of González’s family, accuses the Department of Homeland Security and U.S. Customs and Border Protection of battery, negligence, recklessness, and wrongful death.

As Reason has previously reported, the Laredo sector has seen the highest numbers of employee misconduct and disciplinary actions. In 2017, 13 percent of the sector’s Office of Field Operations and 42 percent of the U.S. Border Patrol were involved in some kind of disciplinary incident. These include drug- and alcohol-related crimes, domestic incidents, and abuses of power.

González’s death wasn’t the only time last year that a border agent in the Laredo sector made national news in connection with a killing. In April, agent Ronald Anthony Burgos-Aviles stood accused of slaying both his lover and their child. And in September, another agent—Juan David Ortiz—confessed to murdering at least four sex workers.

from Latest – Reason.com http://bit.ly/2YKZ4Cq
via IFTTT