Malibu Times reports a vexing case featuring unseemly conflict between the rights of the owner of a piece of astronomically expensive California private property and science.

The discovery of a Clovis spearhead, believed to be thousands of years old, at a local home construction site has the homeowner and an archeologist at odds on what should be done with the site. The property owner wants to finish her home and move in, the archeologist wants to preserve the site, called Farpoint, and be allowed to conduct further research.

In September of 2005, Gary Stickel was the archeologist of record at the Farpoint site, then being developed by the private homeowner, and hired to oversee excavation at what was known as an “architecturally sensitive site.”

“Other objects, scrapers and micro-tools, had been found on the property,” Stickel said. “So we knew it was a culturally sensitive site. Then we found the spear point.”

The approximately 8-inch long, stone spear point is a tool produced by the Clovis people, believed to be the first human inhabitants of the Americas.

Not only does that date the piece to more than 11,000 years ago, the site of its location is the farthest point west in North America that the Clovis tribes can be traced, thus the designation “Farpoint.”

Dennis Stanford, director of the Paleoindian/Paleoecology Program at the Smithsonian Institute, in a written affidavit that authenticated the spearhead, said “… until the discovery of the Clovis occupation level at the Farpoint site, no “in situ” Clovis age sites are known along the West Coast of the Americas.”

The property owner, who is not identified to protect her privacy and the integrity of the archeologically sensitive site, has been cooperative through the last few years of research, but is ready to occupy her new house. And, Stickel said, she has shut down any further excavation.

Read the whole thing.

Wikipedia: Clovis point article.

If that Clovis Point is a legitimate artifact, and was not simply planted by an enterprising neighbor who prefered the site undeveloped, then there is a significant public interest in investigating, possibly in preserving, the site. But satisfying that public interest is indubitably a taking, and if the public wants to dig in that land, or to own that land, it ought to pay for it, not simply pass some regulations.

Listen to this exchange on Sean Hannity.

That’s not just a slip of the tongue. You don’t get the First and Second Amendments confused, if you are significantly personally interested in the issues associated with either one. You can just tell that Rudolph Giuliani and the Bill of Rights have not had a meaningful relationship since high school civics class about 50 years ago.

Hat tip to Brian Hughes.

John Lott review Giuliani’s dismal record on the Second Amendment here.

One person’s “reasonable and sensible” gun laws aren’t always another’s. So when Rudy Giuliani recognizes that the Second Amendment guarantees people the right to bear arms subject to “reasonable and sensible” laws, it really doesn’t tell us much. Yet one thing is for sure though: Giuliani is hardly a “strict constructionist” on constitutional matters, at least when it comes to the Second Amendment. It is a long ways from “shall not be infringed” to “shall infringe whenever Congress has a ‘reasonable and sensible’ justification.”

For those who support the Second Amendment, the main problem is that Giuliani has rarely met a gun regulation he didn’t see as “reasonable and sensible.” In 2000, he pointed out how he was “a very strong supporter of gun-control legislation” and called for everything from federal gun-licensing and registration to banning guns based upon their price.

Only in the last couple of months has he finally gone on the record as opposing a gun law: he came out against re-imposing the assault-weapons ban. Yet he originally supported this law when it was first adopted, and he wanted it renewed as recently as 2004, when it expired.

His support for all these gun laws isn’t too surprising given his belief that “the single biggest connection between violent crime and an increase in violent crime is the presence of guns in your society . . . . the more guns you take out of society, the more you are going to reduce murder. The less guns you take out of society, the more it is going to go up.”

Read the whole thing.

Judge Laurence H. Silberman wrote the opinion striking down the District of Columbia’s ban on possession of operable handguns in private homes. The District law required privately owned pistols to be kept unloaded and disassembled or rendered inoperable by a trigger lock.

How Appealing reports and has links.

Rep. John Shadegg’s (R-AZ) office reports:

(On Wednesday), Congressman John Shadegg reintroduced the Enumerated Powers Act, a bill that highlights the importance of the Tenth Amendment and forces a continual reexamination of the role of the federal government.

“The Enumerated Powers Act would require Members of Congress to include an explicit statement of Constitutional authority into each bill that is introduced. It would hold Congress accountable for its actions,” said Shadegg.

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“According to the Tenth Amendment, the national government cannot expand its legislative authority into areas reserved to the States or the people,” said Shadegg. “It is a well-known fact that the size and scope of the federal government has exploded since the New Deal. Congress continues to operate without Constitutional restraint, creating costly and ineffective programs and blatantly ignoring the principles of federalism.”

We should be running this guy in 2008.

The Washington Examiner editorializes:

Something almost without precedent in America will happen Thursday. That’s the day when McCain-Feingold — aka the Bipartisan Campaign Reform Act of 2002 — will officially silence broadcast advertising that contains criticism of members of Congress seeking re-election in November. Before 2006, American election campaigns traditionally began in earnest after Labor Day. Unless McCain-Feingold is repealed, Labor Day will henceforth mark the point in the campaign when congressional incumbents can sit back and cruise, free of those pesky negative TV and radio spots. It is the most effective incumbent protection act possible, short of abolishing the elections themselves.

How can this possibly be, you ask? McCain-Feingold — named after the law’s main advocates, Sen. John McCain, R-Ariz., and Russ Feingold, D-Wis. — bans all broadcast political advocacy advertising that mentions candidates by name, beginning 60 days before the election. President Bush signed and the U.S. Supreme Court shockingly upheld McCain-Feingold three years ago…

None of this would surprise Alexander Hamilton, who argued in “The Federalist Papers” that written guarantees of things like freedom of the press would be purposely misconstrued by ambitious politicians and used as a pretext to do that which the Constitution banned: “I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” That is just about exactly what has happened now with the First Amendment and freedom of political speech, thanks to McCain-Feingold.

By election day, it should be clear to all reasonable persons that McCain-Feingold was a serious mistake and, like Prohibition, ought to be repealed.

George W. Bush was conserving all that political capital he was going to use to pass Social Security reform and permanent tax reform. He knew that the Supreme Court would jjust have to strike down McCain-Feingold, so why take the heat? He went ahead and signed it.

The Supreme Court’s astonishing ruling in McConnell v. Federal Election Commission, I woud say, deserves to rank as the absolute nadir of Supreme Court decisions, worse than Kelo, worse than Roe, worse than Dred Scott.

The Bipartisan Campaign Reform Act of 2002 is not only a direct attack on free speech, it is a direct attack on political free speech. If any form or species of speech deserves to be more protected than others, surely it would have to be specifically political free speech.

Senator John McCain, whose name was attached to this abominable piece of legislation, is likely to be a candidate for the Republican presidential nomination in 2008. Let’s hope it does not escape the GOP’s attention that this potential nominee has a record of conspicuous enmity to both the First and Second Amendments.

Ann Althouse, law professor and often acerbic blogger (who notoriously does not tolerate fools gladly), lowers the boom on Judge Anna Diggs Taylor in the Times.

As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”

For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.

Orin Kerr, at the Volokh Conspiracy, responds to the left’s most dishonest blogger‘s rantings over criticisms of Judge Anna Diggs Taylor’s NSA opinion by the Washington Post (and others), observing:

the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don’t know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don’t know enough of the facts to know if the program violates the Fourth Amendment.

Professor Kerr has identified the most interesting feature of the NSA flap. The December 16, 2005 New York Times leaked NSA story accused the Bush administration of “monitoring,” a term subsequently rhetorically upgraded to “spying,” and ultimately to “eavesdropping,” on international phone calls and email messages “within the United States” without warrants.

The Bush Administration’s accusers knew that they were taking a very serious step by divulging the existence of one or more top secret National Security programs, and they not surprisingly chose merely to apply partisan and inflammatory characterizations without ever specifically describing what it was that they were pointing to with feigned outrage.

Since all this is secret, no one outside certain intelligence agencies and the upper reaches of the US Government really knows who is doing what, when, or to whom. It is really as if all it required was for Messrs. Risen and Lichtblau to write a story saying “the Bush Administration is secretly violating the law,” some unidentified persons said “by doing bad things,” and the left faithfully falls into zombified lockstep, and begins shouting cries of pain and outrage in chorus.

A key problem is no one has ever been identified anyone who has ever experienced a known wrong, or a perceived consequence of any kind, from whatever it is that NSA might, or might not, be doing.

Can the Constitution really be violated, or the law be broken, by persons unknown secretly peforming unknown acts devoid of discernible effect?

The left obviously thinks that George W. Bush is just intrinsically unconstitutional, and that he breaks the law just by being in office, and their grasp of so much of the MSM allows them to create an echo-chamber alternative reality in which the liberal articles of faith -which everybody knows- seem very real, however tenuous their relationship to mere diurnal reality.

Mark Steyn heaps plenty of well-deserved ridicule on Justice Stevens’ Hamdan ruling.

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it’s best if they’re fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you’ll be treated as a lawful combatant should you fall into the hands of the other side. There’ll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded –that there would, in fact, be a downside for going that route.

The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent. The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad — or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.

The corrupt United Nations, run by tinpot Third World dictatorships, is actively working (along with a number of prominent liberal international do-gooding organizations) to impose gun control on every country in the world, including the United States. Civilian disarmament resulting in governmental monopoly of force is a fundamental goal of leftwing statism.

A push for global gun control gets under way next week in New York City, when the United Nations opens a conference intended to curb the international arms trade.

Amnesty International, Oxfam International and the International Action Network on Small Arms (IANSA) are pushing for a treaty to “protect civilians from armed violence.”

Those three groups — which have formed a coalition called the Control Arms Campaign — say their goal is to reduce arms proliferation and misuse — “and to convince governments to introduce global principles to regulate the transfers of weapons.” They are urging the United Nations to impose a “binding arms trade treaty.”

According to Amnesty International, nearly 2 billion people live in deep poverty, a problem made worse by the “uncontrolled proliferation of guns and other weapons that also fuels human rights abuses and escalates conflicts.” Amnesty International claims that weapons kill more 1,000 men, women, and children every day.

“It doesn’t have to be like this,” Amnesty International says on its website. The Control Arms Campaign believes a global Arms Trade Treaty is the solution.

But in the United States, defenders of the Second Amendment are insulted by what they see as a carefully timed assault on the U.S. Constitution.

They note that the U.N. Conference on Global Gun Control will run from July 26-July 7 — a time span that includes the Fourth of July, Independence Day.

The U.N. conference poses a direct threat to America’s constitutionally protected individual right to keep and bear arms, said Alan Gottlieb, founder of the Second Amendment Foundation (SAF).

Gottlieb, who plans to attend the U.N. conference, is urging the U.S. government to reconsider its financial support for the United Nations, given its effort to undermine the Second Amendment.

“Had it not been for our tradition of private firearms ownership, our citizens might still be subjects of the queen,” Gottlieb said in a press release.

“Had it not been for America, all of Europe might be speaking German. Were America not the ‘great arsenal of democracy’ that President Franklin D. Roosevelt described in 1940, the world would be a far different place, and the sanctimonious bureaucrats at the U.N. might instead be working in labor camps.”

Gottlieb finds it troubling that as the United States celebrates its 230th birthday, global anti-gunners “want to create a binding international agreement that could supersede our laws and Constitution.

“We have done much for the U.N., and in return, the organization has hosted despots, tyrants and dictators whose record of human rights abuses, aggression and genocide speaks for itself. And now comes an attack on our Constitution, on our national holiday.

“America has always answered the call to help our international friends and neighbors,” Gottlieb observed, “but when our very way of life is attacked, maybe it is time to find more worthy endeavors for our material and financial support.”

At the United Nations’ first small arms conference in 2001, the United States rejected the idea of global gun control.

John Bolton – the current U.S. ambassador to the United Nations – in 2001 was serving as U.S. Undersecretary of State for Arms Control. He told the U.N. conference in 2001, “The United States believes that the responsible use of firearms is a legitimate aspect of national life.”

President Bush intervened in the conflict between the Justice Department and Congress, ordering the material taken from Rep. William Jefferson’s office sealed for 45 days, obviously in order to provide time for judicial review.

The president deserves commendation for acting responsibly on the occasion of a conflict in the Constitutional balance between federal branches. I think myself that a number of usually extremely perspicacious commentators on the Right went off half-cocked on this one.

Readers will recall that the FBI searched Rep. Jefferson’s office on Saturday and Sunday, and that the US Constitution, Article 1, Section 6, says:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

————

In evaluating these kinds of issue, I think that a good starting point is always Justice Joseph Story (Y 1798)’s Commentaries on the Constitution of the United States (1833).

On Article 1, Section 6, Justice Story decidedly notes the importance of legislative immunity :

§ 856. The next part of the clause regards the privilege of the members from arrest, except for crimes, during their attendance at the sessions of congress, and their going to, and returning from them. This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange, indeed, if it were denied to the highest functionaries of the state in the discharge of their public duties. It belongs to congress in common with all other legislative bodies, which exist, or have existed in America, since its first settlement, under every variety of government; and it has immemorially constituted a privilege of both houses of the British parliament.

It seems absolutely indispensable for the just exercise of the legislative power in every nation, purporting to possess a free constitution of government; and it cannot be surrendered without endangering the public liberties, as well as the private independence of the members.

§ 857. This privilege from arrest, privileges them of course against all process, the disobedience to which is punishable by attachment of the person, such as a subpoena ad respondendum, aut testificandum, or a summons to serve on a jury; and (as has been justly observed) with reason, because a member has superior duties to perform in another place. When a representative is withdrawn from his seat by a summons, the people, whom he represents, lose their voice in debate and vote, as they do in his voluntary absence.

The legislative immunity in Britain, Story notes, was confined to intervals only modestly longer than the actual sessions of Parliament.

§ 858. The privilege of the peers of the British parliament to be free from arrest, in civil cases, is for ever sacred and inviolable. For other purposes, (as for common process,) it seems, that their privilege did not extend, but from the teste of the summons to parliament, and for twenty days before and after the session. But that period has now, as to all common process but arrest, been taken away by statute.

The privilege of the members of the house of commons from arrest is for forty days after every prorogation, and for forty days before the next appointed meeting, which in effect is as long, as the parliament lasts, it seldom being prorogued for more than four score days, at a time.

In case of a dissolution of parliament, it does not appear, that the privilege is confined to any precise time; the rule being, that the party is entitled to it for a convenient time, redeundo.

In today’s United States, when it ordinarily takes a year or more to go to trial, one would expect legislators to be able to claim very long intervals of immunity.

Even in Britain, Story notes, that Spirit of Modernity has tended to curtail the principle of legislative immunity short of the point where it might benefit the contents of Rep. Jefferson’s office.

§ 859. The privilege of members of parliament formerly extended also to their servants and goods, so that they could not be arrested. But so far, as it went to obstruct the ordinary course of justice in the British courts, it has since been restrained.

In the members of congress, the privilege is strictly personal, and does not extend to their servants or property.

Note that Justice Story accords Congress only a lower case “c.” The American principle of Republicanism was decidedly stronger and more keenly felt in 1833 than it is today, when presidents are accompanied routinely by a complement of bodyguards and functionaries the Sultan of Byzantium might envy. I think Justice Story’s observations are informative, as always, but I think an able attorney would not have the least difficulty in arguing either side of Rep. Jeffeson’s claim to the application of Article 1, Section 6 privileges to his office papers (and bags of currency).

FBI agents reportedly searched the House office of Rep. William Jefferson, D-LA, on Saturday evening and last Sunday in connection with a bribery and corruption investigation.

Prominent Repubican Congressional leaders, including former Speaker of the House Newt Gingrich and current Speaker Dennis Hastert, have criticized the FBI’s conduct, and raised Constitutional objections.

Some of the most respected voices on the right side of the Blogosphere, including Glenn Reynolds, Michelle Malkin, and Roger L. Simon have objected to the position taken by the Speakers.

Our good friends need to pause for breath, and reflect seriously. The principle of separation of powers matters greatly. Congressional immunity from arrest matters tremendously. These principles of Republican government are infinitely more important than the successful conviction of one more corrupt democrat congressman. History demonstrates abundantly that we can survive the culture of political corruption of the democrat party. But free government could readily be brought to an end by the domination of the several branches of the federal government by a single branch.

In recent history, Congress has been far more guilty than the Executive of arrogating unauthorized powers to itself, and attacking the Executive on the basis of trumped up and exaggerated charges. But, it is certainly possible to imagine an aggressive ultra-liberal president trying to remove Congressional opposition by false allegations of corruption. Some of us believe that the House Majority Leader was successfuly removed by false charges lodged by a partisan county prosecutor in Texas.

It is on rare occasions like this, in which political leaders take principled positions, ignoring their own party’s interests, that our faith in our system of government and its institutions is justified and confirmed.

Read the US Constitution, Article I. Section 6 which states:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

I think it is impossible to avoid considering Congressional offices as part of the “going to and returning from the same” aspect of Congressional attendance. And the 18th century concept of a felony would apply to what were then commonly capital crimes of violence, not to ordinary bribery and corruption.

Of course, the determination of all this may, and should be left to the wisdom of Third Branch of the Federal Government, the Supreme Court. But, in the meantime, we should be proud that Republican Legislative leaders will defend the rights of their branch of government, even in the case of its least worthy member.