-- James Madison, Federalist No. 44, 1788
"What is to be the consequence, in case the Congress shall misconstrue this part [the necessary and proper clause] of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them ... the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in a last resort a remedy must be obtained from the people, who can by the elections of more faithful representatives, annul the acts of the usurpers."
-- James Madison, Federalist No. 44, 1788
"It has long, however, been my opinion, and I have never shrunk from its expression ... that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one."
--Thomas Jefferson, letter to Charles Hammond, 1821
Scene from the movie 'Amistad.'
James Madison: All branches must mark out the constitutional limits of governmental powers, not just the judiciary
_"I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments."
-- James Madison, 1789
_American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files, a federal judge in Colorado ruled today in what could become a precedent-setting case.
American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files, a federal judge in Colorado ruled today in what could become a precedent-setting case.
Judge Robert Blackburn ordered a Peyton, Colo., woman to decrypt the hard drive of a Toshiba laptop computer no later than February 21--or face the consequences including contempt of court.
Blackburn, a George W. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be "compelled in any criminal case to be a witness against himself," which has become known as the right to avoid self-incrimination.
"I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," Blackburn wrote in a 10-page opinion today. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well.
Ramona Fricosu, who is accused of being involved in a mortgage scam, has declined to decrypt a laptop encrypted with Symantec's PGP Desktop that the FBI found in her bedroom during a raid of a home she shared with her mother and children (and whether she's even able to do so is not yet clear).
Colorado Springs attorney Phil Dubois, who once represented PGP creator Phil Zimmermann, now finds himself fighting the feds over encryption a second time.
"I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals," Fricosu's attorney, Phil Dubois, said this afternoon. "I think it's a matter of national importance. It should not be treated as though it's just another day in Fourth Amendment litigation." (See CNET's interview last year with Dubois, who once represented PGP creator Phil Zimmermann.)
Dubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. "If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," he said.
Today's ruling from Blackburn sided with the U.S. Department of Justice, which argued, as CNET reported last summer, that Americans' Fifth Amendment right to remain silent doesn't apply to their encryption passphrases. Federal prosecutors, who did not immediately respond to a request for comment this afternoon, claimed in a brief that:
"Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible."
Read this story at cnet.com ...
_The Witherspoon Institute - Public Discourse
Those who oppose judicial supremacy follow in the footsteps of Abraham Lincoln himself.
Newt Gingrich’s statements about the judiciary during the December 15, 2011, GOP debate and on Bob Schieffer’s Face the Nation the following weekend ignited a firestorm over his view of American constitutionalism that has been smoldering in the media for several months now. His challenge to judicial supremacy—the idea that the Supreme Court has the last word on the meaning of the Constitution—has been much condemned, particularly because Gingrich’s argument also criticizes the declaration of judicial supremacy in the Court’s 1958 desegregation decision, Cooper v. Aaron. Ian Millhiser of Think Progress was quick to accuse the former Speaker of siding with the white supremacists of the 1950s when Gingrich first released his position paper on the judiciary in October.
Although the media’s breathless denunciations suggest otherwise, Gingrich is not the first public figure to challenge the Cooper Court’s assertion of its supremacy over constitutional interpretation. Attorney General Edwin Meese did the same in a 1986 lecture at Tulane University. Meese’s address elicited a similarly angry response from the press, especially from columnist Anthony Lewis, who made Cooper the centerpiece of his appraisal of Meese’s speech. As was the case in 1986, the debate over Cooper in the past few months has been confused, epitomized by the New York Times’ recent suggestion that Gingrich’s critique of Cooper has “disturbing racial undertones.” The Times and others misunderstand the history and law of that famous case. Those who argue that the Supreme Court is not the ultimate arbiter of the Constitution’s meaning need not deny the fact that Cooper was rightly decided; they can and do celebrate the courage of that opinion.
Cooper v. Aaron came to the Supreme Court under extraordinary circumstances, the drama of which is matched by...
Read this important article at thepublicdiscourse.com ...
"Every man, and every body of men on earth, possesses the right of self-government."