Natural Rights, Enumerated Rights, and the Ninth Amendment

October 15, 2008
Speaker: Michael W. McConnell, Presidential Professor of Law, Judge, 10th U.S. Circuit Court of Appeals

Summary: The Sumner Canary Lecture
When faced with drafting a Bill of Rights, members of the First Congress were faced with an impossible problem: what to include and what to leave out. Lockean theory told them that after construction of a social compact, such as the Constitution, the people would retain all rights not relinquished to the state. But what was the legal status of those retained rights, and how would they be affected by the explicit enumeration of some but not all of them?

Michael W. McConnell joined the faculty of S.J. Quinney College of Law in 1997 after teaching at the University of Chicago Law School for 12 years, where he was William B. Graham Professor of Law. Prior to his teaching career, Professor McConnell served as assistant to the solicitor general with the U.S. Department of Justice, assistant general counsel for the U.S. Office of Management and Budget, and clerked for Chief Judge J. Skelly Wright, of the District of Columbia U.S. Circuit Court of Appeals. He also served a clerkship with U.S. Supreme Court Justice William J. Brennan. Among the country’s most distinguished scholars in the fields of constitutional law and theory with a specialty in the religion clauses of the First Amendment, Professor McConnell has argued 11 times before the U.S. Supreme Court. He is widely published in the areas of church-state relations and the First Amendment. He is a Fellow of the American Academy of Arts and Sciences, and was sworn in as a judge on the 10th U.S. Circuit Court of Appeals on January 3, 2003.

Professor McConnell teaches constitutional law, family law, state and local government, religion and the First Amendment.

Duration : 1:8:21

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Brad Bannon on Supreme Court back in session

Scott interviews Washington DC political strategist Brad Bannon

(Huffington Post)

First Amendment cases top the Supreme Court’s docket as it begins a new term with a new justice and three women on the bench for the first time.

The court will look at provocative anti-gay protests at military funerals and a California law banning the sale of violent video games to children. These cases worry free speech advocates, who fear the court could limit First Amendment freedoms.

The funeral protest lawsuit, over signs praising American war deaths, “is one of those cases that tests our commitment to the First Amendment,” said Steven Shapiro, legal director of the American Civil Liberties Union.

Another case involves a different aspect of the First Amendment, the government’s relationship to religion. The justices will decide whether Arizona’s income tax credit scholarship program, in essence, directs state money to religious schools in violation of the constitutional separation of church and state.
More at http://lbnnews.com

Duration : 0:10:32

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Persecution of communists’ in (fake) western democracies: case law summaries

Q:To what extent did public and political opinion in the west undermine the impartiality of judicial decision-making during the cold-war era?
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USA

In a famous dissent, Justice Douglas of the US Supreme Court declared:

‘We have deemed it more costly to liberty to suppress despised minorities than to let them vent their spleen’ (Dennis v United States U.S. 494 at p. 585 (1951) (U.S.S.C.).

No western democracy has practiced the tolerance exposed [mistake in video, it should read “expoused”] by Justice Douglas-in the above statement, without at some stage censoring unpopular organizations. Douglas was in a minority of two on a US Supreme Court bench which upheld convictions entered against Communist party sympathizers for conspiring to overthrow the US government. (Joseph, P,think it’s “1998” edn., Constitutional and Administrative Law in New Zealand, ).

In Dennis v United States, above, the US Supreme Court upheld convictions against communist party officials for conspiring to teach or advocate the overthrow of the government by force or violence. Here, the Court considered that the advocacy of the communist doctrine was to be equated with conspiring to forcibly overthrow the US government.

Dennis was decided in 1951, at the height of cold-war tensions between the USSR and the US. Justice Black aligned with Justice Douglas in the minority stating:

‘Public opinion being what it is now, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions, and fears subside, this or some other later court will restore the First Amendment liberties to the high place where they belong in a free society.’ (Dennis, supra, at 581).

Justice Black’s statement was realized six years later in Yates v United States 354 U.S. 298 (1957) (U.S.S.C). This time, a differently constituted Supreme Court bench quashed the convictions of 14 Communist Party leaders that had been entered for similar reasons under the same Act.

With the easing of east-west relations, the Court drew a clear distinction between the advocacy of forcible overthrow of government-as an abstract doctrine, and the advocacy of action to achieve that result.

According to legal philosopher Wolfgang Friedman, it was impossible to remove the judgment of the US Supreme Court from the political tensions and public opinions that existed at that time. (W. Friedman, Legal Theory, (4th edn. , 1960, at p.95).

Australia

Australia also expressed abhorrence at communist doctrine during the post-war era. In Burns v Ransley (1949) 79 C.L.R. 101 (H.C.), the Australian High Court upheld a conviction for sedition entered against a communist speaker who, when asked, announced that, in the event of a war, he would fight on the side of the Soviet Union. He was convicted for words he had spoken in reply to a hypothetical question, and not for inciting mutiny or violence.

The following year the Communist Party Dissolution Act 1950 (Cth) declared the Australian Communist Party to be a revolutionary organization which jeopardized the defence of the Commonwealth. The statute dissolved the Communist Party and all affiliated organizations declared illegal under the Act.

The fundamental democratic principle of freedom of expression was restored when a majority of the High Court of Australia in Australian Communist Party v Commonwealth (1951) 83 CLR 1, declared the Communist Dissolution Act 1950 (Cth) to be unconstitutional and beyond the defence powers of the Commonwealth (see also R v Sharky (1949) 79 CLR 121).

New Zealand

During the early 1980s in New Zealand, Priminister Robert Muldoon took exception to the Socialist Unity Party and questioned it’s right to exist in a free and democratic society. However, a government, expounding the rule of law, must demonstrate greater justification for out-lawing a particular group or organization, for reasons other than personal enmity (Joseph, supra, at p.191).

See also New Zealand Bill of Rights Act 1990, s.14 (right to freedom of expression), and related case law; and Human Rights Act 1993, s.21(j)(prohibits discrimination on grounds of political opinion) incorporated, by reference, into s.19 NZBORA; note also- Crimes (Repeal of Seditious Offences) Amendment Act 2007; & see Flags, Emblems, and Names Protection Act 1981, s.11 (offences involving New Zealand flag)

Duration : 0:4:20

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Lindsay Lohan fails drug test , sister Ali and father conservatorship on Kelly’s Court.

Beverly Hills judge originally sentenced actress Lindsay Lohan to 90 days in jail, plus 90 days in-patient rehab for probation violation. Now, Lindsay faces another 30 days (or more, considering the FU message on her nails) in the “big house” for failing a drug test while on probation.

Arthur Aidala and Mark Eiglarsh comment on her, her father and her younger sister Ali, who is still a minor, on Kelly’s Court.

Duration : 0:6:23

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THE SUPREME COURT | Episode 1 Excerpt | PBS

“The key lesson of Marbury vs. Madison is: Don’t give important documents to your brother.” –Ernest A. Young, University of Texas at Austin Check out this preview of The Supreme Court airing on PBS January 31, 2007 (check local listings). Episode 1: One Nation Under Law examines the creation of the court and follows it through the brink of the Civil War, paying particular attention to the fourth chief justice of the Supreme Court — John Marshall — and to his successor, Roger Taney … PBS …

Duration : 0:3:32

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Straight Talk TV Show: Constitutional Law Expert Dr. Craig Smith Part 3

Duration : 0:10:0

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Supreme Court to Hear Violent Video Game Case

The U.S. Supreme Court will hear arguments Tuesday about the federal court’s decision to throw out California’s ban on violent games, marking the first time a case involving the interactive medium itself has gone before the Supreme Court. (Nov. 1)

Duration : 0:3:2

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Judge Andrew Napolitano on The Alex Jones Show 1/2: Geithner’s Bankergate & 3rd Party Rising

Alex talks with former New Jersey Superior Court Judge and a political and legal analyst for Fox News Channel, Andrew Napolitano. Judge Napolitano hosts Freedom Watch and is the author of several books, including Constitutional Chaos: What Happens When the Government Breaks its Own Laws and The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land.
http://www.judgenap.com/
http://www.infowars.com/

Duration : 0:10:7

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Couric Stumps Palin With Supreme Court Question

Sarah Palin interviewed by Katie Couric, October 1, 2008

Duration : 0:2:5

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Judicial Supremacy vs Co-equal Branches, Lecture 2

Join the discussion: http://www.judicialsupremacyvscoequalbranches.com/

Visiting University of Georgia Law Lecturer and former House Speaker Newt Gingrich argues that the defeat of judicial supremacy and the reestablishment of a constitutional balance of power among the legislative, executive, and judicial branches are unavoidable if we are going to retain our freedoms and our identity as Americans.

Duration : 0:52:12

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