So when one takes the position, as Ventola has here, that those rights “actually located in the Constitution” deserve protection but that all unenumerated rights are open to “legislation”, he is taking the exact position that the 9th amendment was designed to avoid because “legislation” means allowing the government - i.e. the majority - to regulate any unenumerated right as it sees fit. It renders the entire concept of unenumerated rights meaningless and reads the 9th amendment out of the Constitution entirely.

It has become popular for conservatives to call themselves libertarians. I think this essay does a good job drawing a distinction.

Positive Liberty » The 9th Amendment and Unenumerated Rights

“The Bush administration... has repeatedly supported a federal sentencing system that is distinctly disrespectful of the very arguments that Bush has put forward in cutting Libby a break,” said Douglas A. Berman, a law professor at Ohio State University who writes the blog Sentencing Law and Policy.

The Libby clemency will be the basis for many legal arguments, said Susan James, an Alabama lawyer... “What you’re going to see is people like me quoting President Bush in every pleading that comes across every federal judge’s desk.”

Similarly, in a case decided two weeks ago by the United States Supreme Court and widely discussed by legal specialists in light of the Libby case, the Justice Department persuaded the court to affirm the 33-month sentence of a defendant whose case closely resembled that against Mr. Libby.

Read the article. The last line in it is, I think, the most important.

Whether the pardon was right or wrong is irrelevent. Whether or not the prosecution was politically motivated is irrelevent. Whether or not Libby is truely guilty is irrelevent. Whats important is that this decision runs against the grain of everything the Republican party claims to stand for.

Bush Rationale on Libby Stirs Legal Debate - New York Times

they think they are above us. We know that none of us could get away with what they have done. This commutation (who doesn't hate this clunky word?) shows to the average guy that these people aren't held to the same standards as the rest of us. They can get away with crimes because they are powerful.

I just made this observation. This is a simple idea that resonates. If the 4th holiday doesn't divert the public's attention the blowback could be loud.

Cenk Uygur: Bill Maher is Wrong: Libby is the Straw That Broke the Camel's Back - The Huffington Post

Those who are concerned about the Bong Hits ruling should note this cert denial, in which the Supreme Court says images of drugs are fine if they occur in a political context:

Putting its recent ruling on student speech into practice, the Supreme Court on Friday rejected a school district's appeal of a ruling that it violated a student's rights by censoring his anti-Bush T-shirt.

A seventh-grader from Vermont was suspended for wearing a shirt that bore images of cocaine and a martini glass—but also had messages calling President Bush a lying drunk driver who abused cocaine and marijuana, and the

Footnote on Bong Hits for Jesus

Full Committee Hearing on "Assessing the Impact of the Copyright Royalty Board Decision to Increase Royalty Rates on Recording Artists and Webcasters.

Yesterday the House held a hearing in response to the Day of Silence. But BusinessWeek says:

Small Webcasters intent on keeping Internet radio stations from going out of business best not look to Congress for help. That's the message from a June 28 House of Representatives hearing aimed at resolving a dispute over efforts to increase the royalties paid by Web radio stations to musicians and record labels for spinning their songs.

House Small Business Committee Chairwoman Nydia Velazquez said she'd prefer Webcasters and the music industry come up with their own compromise. "I really don't think Congress would be the best type of vehicle to resolve this type of issue," she said after the testimony of seven witnesses, including independent record-label owners, musicians, and Webcasters. "July 15 is just around the corner, and I hope the two parties can come together and resolve this issue."

Congress created the rule system, at the behest of the music industry, that has been used to constrain the development of internet radio. Already that rule system has resulted in small webcasters going off the air completely for a 6 month period of time. That shutdown was not resolved until threats emerged from Congress. Today we stand at such a precipice again. Congress is responsible, and Congress will take responsibility. Unfortunately it appears they will only take responsibility after another shutdown. I think this time the volume of the response after a shutdown is apt to be much, much louder than it was last time. I think Congress is in for a surprise

Impact of Royalty Increases on Internet Radio

There is a lot of noise out there about the Seattle case. There is a rather personal left right split on the court, but none of it matters because Kennedy's opinion is the weakest link in the majority, and his conclusions are rather narrow.

In today's school-assignment cases, Justice Kennedy's opinion controls, as he was the 5th vote to overturn the Seattle and Louisville school assignment plans, and the reasoning in his concurrence is narrower than that of the Chief's plurality opinion.

As to the Seattle plan, the key paragraph in Kennedy's concurrence, it seems to me, is this one:

"In the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions based on individual racial classifications, but it has nevertheless failed to explain why, in a district composed of a diversity of
races, with only a minority of the students classified as “white,” it has employed the crude racial categories of “white” and “non-white” as the basis for its assignment decisions. Far from being narrowly tailored, this system threatens to defeat its own ends, has provided no convincing explanation for its design."

Is That Legal?: In Seattle, Diversity Isn't A Black-And-White Issue

The future of Internet radio is in immediate danger. Royalty rates for webcasters have been drastically increased by a recent ruling and are due to go into effect on July 15 (retroactive to Jan 1, 2006!). Webcasters across the country participated in a national Day of Silence this week to increase awareness about this looming threat and gather support for the SaveNetRadio collation and our campaign to preserve music diversity on-line. The Internet Radio Equality Act is currently being considered by both the House and the Senate. This bill will set royalty rates for Internet radio equal to the royalty rate paid by satellite radio, and has gained over 120 cosponsors in the House.

Internet radio needs your help to survive. We need you to pressure your representatives in Congress to take action. Please take a moment to call your Congressional representatives in the House and Senate to ask them to co-sponsor the Internet Radio Equality Act. Making your voice heard will go a long way to helping preserve the Internet radio industry. Time is running short, so please call your representatives today.

Rhapsody sent me a pointer to this today.

Savenetradio.org

Swater wrote:

A former high school student has lost his case in what is the US Supreme Court's first major ruling on students' free speech rights in almost 20 years.

This is a terrible decision.

1) The student was not on school property at the time.
2) The banner "Bong Hits 4 Jesus" is obviously humor.
3) The students property was destroyed with no compensation.
4) The decision is based on the fact that illegal drug use is illegal by definition, and therefore promotion of such is not protected speech.

So, what if the banner had read "I support Medical Marijuana" instead? What if it said "I support late term abortions" and was displayed off-campus at a planned parenthood rally - would that also be speech the school can legally suppress?

According to the Supreme Court, in a word, yes.

These are your right folks, slipping away...

I'm not terribly troubled by the basic conclusions in this decision. There are two primary facets to this. The first is the question of whether or not this is protected speech at school, and the second is whether or not this occurred at school.

As for the first question, students at school do not have first amendment rights that are as broad as they are in other situations. Their first amendment rights are balanced against other government interests (in this case the ability to run an orderly educational environment). So, while on the one hand student expression which is critical of administration policy is likely to be protected, a tshirt with a picture of the principal with horns drawn on his head, merely intended to be funny, might not be protected. The court concluded that "bong hits for jesus" was merely intended to be funny, and was, further, intended to be disruptive, and decided that it falls in the later category and not the former. This seems reasonable to me and its not a watershed event in terms of student first amendment rights.

A banner reading "I support medicinal marijuana" could not be supressed by the school under this ruling.

The second question about whether or not this occured "at school" is a bit more difficult. The student skipped school but showed up at the exact same location as a school field trip, knowing the other students would be there and intending them to see his sign. Its a fine line. If the student had set up the banner far away from the other school students it might have tilted the other way.

I haven't really looked at the legal issues regarding the destruction of the banner. Most of the legal discussion about this case does not seem to hinge around that question.

I am, however, troubled by Thomas's concurrence, which speaks favorably of a 1915 decision which upheld the punishment of students for speaking out about their school's lack of fire safety. Thomas's originalism is often a helpful lens for understanding a Constitutional question, but this is a perfect example of how it can lead to radical conclusions that are totally out of touch with our society.

RE: Bong Hits 4 the Supreme Court - BBC News

“Talk radio is running America,” Lott thundered from the floor of the Senate last week. “We have to deal with that problem.” “That problem” is that the Bush/Kennedy/McCain/Calderon amnesty bill got beaten like a cheap rug on the floor of the Senate last week. “That problem” is that prospects for its revival are dim, at best.

I don't know whether to laugh about the Republicans totally loosing control of their smear machine or cry at the prospect that so many in this country have been lead to such unrealistic expectations with regard to illegal immigration. I think this is going to get ugly.

Lott should just turn himself off - Opinion & Editorial - BostonHerald.com

By a wide margin, several polls show, voters want a Democrat to win -- yet when offered head-to-head contests of leading announced candidates, many switch allegiance to the Republican.

An entertaining collection of blog postings and stories. It looks like no one really has a candidate.

- Media Notes - washingtonpost.com