Featured Guest Blogger Witold J. Walczak

CELL PHONE CAMERAS EXPOSED POLICE MISCONDUCT IN CAIRO; BUT HERE’S A SURPRISE: IF YOU SHOT THE SAME PICTURES IN THE US, YOU’D BE SUBJECT TO ARREST

A PLEA FOR A BROADER INTERPRETATION OF THE FIRST AMENDMENT

By Witold Walczak

Are cell-phone cameras an indispensable tool in the fight for freedom, or an instrument of crime? The answer, which may surprise you, depends on who you ask and where you record. For instance, in the United States police regularly prosecute and harass amateur photographers, especially when they are recording police misconduct, and courts have been reluctant to declare such photography to be a constitutional right. But the recording of government officials performing their duties, especially in public places or where they have no expectation of privacy, is too important in promoting human and civil rights to be left without legal protection.

When Constitutions Fail: Egypt’s Continuing Conundrum

As Egypt struggled through a truly stunning transition of power this past week, discussion increasingly focused on the nation's Constitution. Yet when a constitution has been effectively suspended under Emergency Law for forty years, like Egypt’s has been, what power does it retain? The answer, we learned, is very, very little. The Constitution did not aid in transferring power (in fact, it was an impediment), it did not protect the Tahrir Square protesters (had there been fewer of them, they would have been rounded up and jailed, just as they had been in previous years), it did not prevent the military from finally unconstitutionally seizing control (it appears that this was the best of all outcomes, but the Constitution did not provide for it) and now that Hosni Mubarak is gone it has been cast aside, suspended by the Supreme Council of the Armed Forces which, lacking any authority but that provided by the barrel of a gun, dissolved the parliament and took full control of the process to consider amendments to the Constitution. Indeed, when the history of last week’s revolution is written – and this is what it was, a revolution, though a curiously non-partisan, leaderless one – the Constitution will be portrayed as at best a bystander; at worst, an agent of further tyranny.

JUSTICE SOUTER MAY HAVE RETIRED FROM THE SUPREME COURT, BUT HE IS STILL HEARING CASES

Justice David Souter retired from the Supreme Court in 2009 -- Justice Sonia Sotomayor took his seat -- but that doesn't mean that he has stopped being a judge. At oral argument in the First Circuit Court of Appeals yesterday, Souter -- "riding circuit," as it used to be called -- sat as a member of a three-judge panel hearing a case about the placement of a cell tower in Alton, NH. (Souter is not the only retired justice still wearing robes: Justice Sandra Day O'Connor has also spent some time on the appellate bench even though she left the High Court in 2007).

SUSAN NIELSEN, 2007 JENNINGS FELLOW, ON A NEW PROVOCATIVE GUN BILL

Unhealthy power: Individual mandate should unnerve liberals, too

A provocative new bill in South Dakota would require all adults 21 or older to buy a gun for self-defense. Most any kind of firearm will do. But get one within six months, please, or you'll be in violation of state law.

A Republican dreamed up this bill on a hunting trip, and supporters intend it as a half-serious slam against health care reform. Yet the idea raises a serious constitutional question for any Democrat who defends the individual mandate tucked inside President Barack Obama's signature legislative achievement:

Are you sure the federal government should have the permanent authority to force people to buy stuff from private companies?

Full article at OregonLive.com.

LARA SETRAKIAN, 2007 JENNINGS FELLOW, TWEETS FROM TAHIR SQUARE

This is a clear and brutal siege on what had been a peaceful protest. Sirens in the background, helicopters overhead. More gunfire, and watching streams of men trying to break up the human chain protecting Tahrir Square from one direction. People linking arms, in rows 3-4 thick, have secured all but one of the entrances to Tahrir Square. They're getting charged by thugs. Women and children are still in the center of Tahrir Square. More gunshots. We are watching petrol bombs thrown from a building above, onto the crowd below.

News broken on twitter via @LaraABCNews, February 2, 2011

The Constitution in "Quotes"

“What they’re asking cannot be done,” one senior Egyptian official said, citing clauses in the Egyptian Constitution that bar the vice president from assuming power. Under the Constitution, the speaker of Parliament would succeed the president. “That’s my technical answer,” the official added. “My political answer is they should mind their own business.”

The New York Times, February 3, 2011, on reports that the Obama administration is pushing Egyptian president Hosni Mubarak (left) to relinquish the presidency to Vice President Omar Suleiman (right).

PJP FACULTY MEMBER LISA BLATT ON LESSONS SHE HAS LEARNED FROM HER CAREER OF ADVOCACY BEFORE THE SUPREME COURT

PJP Faculty member and Arnold and Porter partner Lisa Blatt, who has now gave a talk at the Chattaqua Institution in New York state last year on what she had learned in her years of advocacy before the Supreme Court. Her remarks, recently published in the popular law journal "Green Bag" . Below are some excerpts from her essay. A link to the complete text can be found here.

1) I learned that the Court will continue to change the meaning of the Constitution. Although all of the Justices have expressed the importance of judicial restraint, the Court inevitably makes new law every time it interprets the Constitution...

2) The Supreme Court is not the impetus for constitutional change – we are.

PJP FACULTY IN THE NEWS

Two members of the 2011 Peter Jennings Project faculty made news this past week.

Carter Phillips, who will argue the PJP moot court on March 5, was noted in The New York Times for his argument before the Supreme Court in two cases, General Dynamics v United States and Boeing Company v United States, which have been consolidated into one. The cases involve the "states secrets" privilege of the federal government, which was at the heart of a dispute over the scratched building of the Navy stealth aircraft the A-12 Avenger.

Lisa Blatt, who appeared at the 2010 PJP and will be a fulltime faculty member in 2011, also argued before the High Court. Her case involved the pharmaceutical company Astra USA which is fighting a claim by Santa Clara County, California that it was unfairly charged when Astra exceeded negotiated Medicaid price limits.

New Congress to Require All Bills to Cite Constitution

By Dr. Steve Frank

I heard from Publius 2.0 recently. He’s feeling bullish about 2011, expecting sales of The Federalist Papers to soar on Capitol Hill.

That’s because the incoming Republican House leadership – Speaker John Boehner, Majority Leader Eric Cantor, Rules Committee Chairman David Dreier, and Transition Team Chairman Greg Walden – have issued a Memorandum recommending that classic text to members of the 112th Congress and their staffs.

Read the full article here.

The Last Time Filibusters Threatened A Constitutional Meltdown

By Lyle Denniston

The Republicans’ frustration with Democratic filibusters of Bush nominees to appeals courts reached a new level in May 2005. The Republican Senate leaders announced that, if the filibusters continued, they would attempt a drastic procedure – one that soon would be called the “nuclear option” for its capacity to destroy the capacity of the Senate to work together at all.

Read the full article here.