Law Professor Glenn Reynolds ( Instapundit) tackles the issue of the constitutionality of state sodomy laws today in his Fox News Column. He quotes Supreme Court Justice Joseph Story from the 19th century treatise Commentaries on the Constitution and concludes:

"... where laws infringe on important rights like property or "personal liberty," the very "nature of republican and free governments" may offer some restraint, even in the absence of specific constitutional language barring such laws. And this is not because of some fancy new right, but because of longstanding principles that the government should not regulate conduct that causes no harm to others."

The professor also quotes from a Kentucky case that struck down sodomy laws using as an analogy an older case that said the state can't regulate a person's consumption of alchohol:

"The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or as it has been otherwise expressed, that government is best which governs least. Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver."

"... legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior."

A Georgia court, in striking down a law prohibiting consensual heterosexual sodomy, stated:

"Since, as determined earlier, the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy. Consequently, we must conclude that the legislation exceeds the permissible bound of the police power."

Based on these and some other cases mentioned by Prof. Reynolds, he posits that the easiest (or most palatable) way for the Supreme Court to reason its way to striking down the sodomy law currently at issue before the Court is not to carve out a new right of privacy, but to rely on the time-tested and well-accepted theory that "limited government power is an American tradition."

The Professor makes a good argument. The Constitution is a living and breathing document that has served us well for over 200 years. Why complicate things by stretching it too far when a ready answer is so close to its core?

Does anyone see a downside to the Professor's argument? Our motto over here at TalkLeft has always been, "Let's not treat the Constitution as a rough draft" --meaning let's not amend it, let's find ways to allow it stretch within its existing parameters. So we think his argument is well-taken.

The ACLU is offering free legal advice to booksellers on how to protect customers' privacy if served with a subpoena or search warrant. Under the 2001 Patriot Act, "the Government can obtain records of a person’s book purchases as part of an intelligence investigation, without evidence that the buyer is suspected of committing a crime."

In a letter to booksellers, the ACLU quoted Supreme Court Justice William O. Douglas during the McCarthy era: "If a customer ‘can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land.’"

Among the tips contained in the letter:

"Bookstores may consult with ACLU attorneys without charge, and if we decide to represent a bookstore in litigation, there would also be no charge. Please note that although some warrants or subpoenas may contain language that prohibits the bookstore from notifying other persons about the search, these provisions do not prevent a bookstore from consulting with an attorney about how to respond to a subpoena."

"Probably the strongest method of protecting customer privacy is simply not to retain unnecessary records. A subpoena or search warrant cannot force anyone to disclose records that do not exist. For some booksellers, it may be useful to develop systems to delete personal or unnecessary information about customers. Indeed, such a practice might be a selling point for customers who care about their privacy."

For more on this, see the New York Times article, "Librarians Receive Advice on Law and Reader Privacy":

"Concerned about how federal access to their records would undermine readers' privacy, thousands of librarians gathered today around the country to hear televised advice about how to respond to government requests under last year's antiterrorism law."

"Although some of the librarians calling in from among the 250 sites in a national teleconference suggested defiance of the 2001 USA Patriot Act, all the speakers said proper federal requests for data should be dutifully complied with, but only when a proper court order was served and not just because an F.B.I. agent asked for information. "

According to the Justice Department, which finally released some numbers after a request of the Associated Press, of the 765 people detained by the Government after September 11, only six remain in custody.

What's in the numbers?

"Almost 500 of the foreign nationals arrested on immigration charges during the FBI's Sept. 11 probe have been deported to their home countries, officials said. An additional 281 were released in the United States and are free or are awaiting determination of their immigration status, authorities said."

"In addition to the 765 people detained on immigration charges, 134 others were arrested on criminal charges and 99 were convicted, according to the new figures. A separate group of more than 300 were taken into custody in the early months of the campaign by state and local law enforcement agencies, the department said."

What's not in the numbers?

The Justice Department won't say how many people have been held or are still being held on material witness warrants. These arrestees are those the Government says it can detain indefinitely while investigating them for terrorism activity without charging them with a crime. Like Jose Padilla and Yaser Hamdi, and who knows how many others.

"Federal officials, citing grand jury secrecy rules, have refused for 15 months to say how many material witnesses have been taken into custody, or to reveal their names or which courts are supervising the cases."

"A review of such cases by The Washington Post last month found that federal authorities had arrested and jailed at least 44 people as material witnesses in connection with the Sept. 11 probe. "

From the Scotus Quote Box: Comments made Wednesday during oral argument before the Supreme Court in the case about the constitutionality of a Virginia anti-cross burning law.

Is Death Different?

"An en banc 9th U.S. Circuit Court of Appeals was faced Tuesday with deciding whether a recent U.S. Supreme Court case could help potentially hundreds of death row inmates get new sentencing hearings. The 9th Circuit struggled with whether the high court's Ring v. Arizona decision -- which held that juries, and not judges, must decide the aggravating factors leading to a sentence of death -- is a structural or procedural change."

If the change announced in Ring is structural, the defendant will likely get a new hearing. But if the appeals court determines that the ruling is procedural only, he and the death row inmates in other states within the 9th Circuit (Montana, Idaho and Arizona) will likely be denied relief.

As Judge Stephen Reinhardt asked during the argument, "It's not a structural error not to have a jury when you're supposed to?" What would be a structural error if not having a jury is not a structural error? The only other thing I can think of is not having a lawyer or not having a judge."

"...Judge Kim Wardlaw, asked if the fact that this was a case involving life or death made it different from others, where the change might be seen as merely procedural."

Add those questions to the Supreme Court's previous holdings that death is different, and we think the Circuit should decide the change is structural and order new sentencing hearings.

The 9th Circuit is the first to consider this issue since the Supreme Court's ruling in the Ring case. The case is Summerlin v. Stewart, 98-99002.

Friends of Al Gore say he won't run again for President.

"In a notable shift of sentiment, several associates of former Vice President Al Gore said today that they were becoming increasingly convinced that he would not run for president in 2004 and would instead announce in early January that he was stepping aside to allow a new face to challenge President Bush."

And, consider this:

"Further, while Mr. Gore has never been much of a traditional political player, he has, by every account, not made the kind of preparatory telephone calls a candidate for president might typically place in anticipation of an announcement. For example, Donna Brazile, his campaign manager in 2000, said she had not offered him any advice on what he might do, because she had not heard from him in months.

"I haven't reached out to talk to him, because my number is listed," Ms. Brazile said. "I haven't heard from him. I've been talking to Gephardt. I've been talking to Lieberman."

Lisa English over at RuminateThis has a list of the major anti-war protests scheduled for this weekend, and tells us to go over to the activist site United for Peace for details of even more planned events.

"New York City police officials on Wednesday dropped a request to submit secret evidence to a federal court in their fight to loosen federal limits on police surveillance of political organizations. Groups that support the surveillance restrictions -- which require the NYPD to have suspicion of criminal activity before monitoring political groups -- say the request to submit secret evidence was unprecedented for a local police force."

"The department had contended that the secret evidence -- testimony from David Cohen, deputy commissioner of intelligence -- would help prove that officers investigating terrorism can no longer afford to wait for signs of criminal activity before monitoring political groups."

"Franklin Siegel, a professor at City University of New York School of Law and an attorney for the plaintiffs, said the request to submit secret evidence to help decide the merits of a case was unparalleled in the context of local, rather than federal, law enforcement in the United States. "There are no state precedents," he said."

The News & Observer has produced an outstanding 4 part series, "Time of Death," about a wrongful conviction. The introduction states:

Allen Ray Jenkins was murdered in Bertie County in April 1995. Three years later, a petty drug dealer, Alan Gell, was convicted of the crime and sentenced to die. He is now on Death Row at Central Prison.

There is a problem. A wealth of evidence indicates that Gell was in jail when Jenkins was killed. Some of the evidence was suppressed by police and prosecutors. Some was simply not pursued by defense lawyers who put on a hurried and haphazard case.

Like most people on Death Row, Gell insists he is innocent. Gell, however, may well be telling the truth. This is his story.

On Monday, a Bertie County Superior Court judge threw out his conviction and ordered a new trial after finding that the state had failed to turn over evidence of his innocence to the defense.

The Des Moines Register reports that Democrat Tom Harkin is about to take a turn to the left.

"Sen. Tom Harkin of Iowa plans a series of speeches in January designed to move the Democratic Party leftward after setbacks in last month's midterm elections, and establish himself as a leading liberal voice."

"Harkin, a 1992 Democratic presidential candidate, said that he is not interested in the nomination for himself this time, but wants to urge Democrats to express real differences with congressional Republicans and the executive branch - for example, on tax cuts advocated by the president."

"With the death of Democratic Sen. Paul Wellstone of Minnesota, Harkin becomes one of the most left-leaning members of his party in the Senate. Harkin was deeply upset by Wellstone's death in an airplane crash, calling him his best friend in the Senate and breaking down at a news conference after the crash."

"While Harkin is not calling himself the new Wellstone, he's also clearly interested in pushing the party to reject any notion it must moderate to win votes."

That's been our advice too. But if Harkin isn't interested in running, who is he figuring can take the left/progressive lead for the Democrats?

(link via Political Wire and Daily Kos)

Via Eric at Altercation: "By the way, Bruce is on Conan O’Brian tonight, along with Al Gore. Let’s hope and pray that Al doesn’t sing and Bruce doesn’t mention the patients’ bill of rights.”

Searching trash put out for the garbage collector without a warrant may not violate the 4th Amendment, but an Oregon judge finds that under Oregon's stricter constitution, it's not acceptable without a warrant. A few rules apply: You have to put your trash out in your own bin, not a collective bin in which it is comingled with other people's garbage. And it can't be in a transparent bag. If in a garbage can, it should be covered to visually conceal its contents.

"A Multnomah County, Oregon judge threw out felony drug charges against Portland Officer Gina Hoesly, ruling Tuesday that police unlawfully rifled through her garbage in March. "

"Circuit Judge Jean Kerr Maurer said Hoesly did not abandon her garbage when she placed her filled 32-gallon trash can, covered with a lid, outside her home for collection. The so-called police "garbage pull," conducted without a warrant, violated her rights under Article 1, Section 9 of the Oregon Constitution, Maurer said. "

"The defendant did not abandon all of her possessory and privacy rights," Maurer said. "I am finding that the search was unlawful. I am likewise suppressing the evidence."

"Maurer stressed that her ruling was a narrow opinion based on the facts of Hoesly's case, in which her metal garbage can -- opaque, covered with a lid and contained -- was placed outside her house for collection. Her opinion, she said, does not extend to community garbage bins or disposal of trash in transparent plastic bags or open containers. "

"Maurer's ruling marks the second trial court decision in Oregon this year knocking down a warrantless police garbage pull as unconstitutional. On May 16, a Columbia County judge threw out evidence that a multi-agency narcotics team obtained from a similar garbage pull in a marijuana grow case. "

The state plans to appeal both rulings. Until then, the cops in these two jurisdictions aren't happy but they are going to abide by the new rules.

A little more about the defendant police officer:

"As Maurer announced in court that she was granting the defendant's motion, Hoesly quietly turned to her lawyer, Stephen Houze, and mouthed, "Does that mean we won?"

"Houze nodded, and a wide grin spread across Hoesly's face. Hoesly, 34, is a 12-year veteran of the Police Bureau who has been out of work since May 2000 on a disability claim. She was indicted in June on one count of first-degree possession of a controlled substance and six counts of second-degree possession of a controlled substance. "

"The garbage pull turned up "minute trace" amounts of cocaine and methamphetamine on what police call short "snort straws," methamphetamine from a plastic bag and marijuana from a pipe and jar. Police also removed a tampon from the trash, which tested negative for drug residue or semen but gave police Hoesly's DNA profile."

"Mark McDonnell, a Multnomah County senior deputy district attorney, argued that Hoesly, like the suspect named Purvis in the another case, had
"abandoned" her trash and lost her "reasonable expectation of privacy" once she placed it on the sidewalk in a public right of way."

"But Maurer identified several factors that distinguished Hoesly's case from the Purvis case, noting that the renter of the hotel room left the trash in plain sight, did not try to conceal it and left it in a location that was not his but rented temporarily. Hoesly's garbage, in contrast, was covered with a lid."

"The steps she took by purchasing a metal container with its lid fitted to its top reasonably suggests that she intended that its contents be seen only by the employees of the garbage company with whom she had contracted to collect her waste," Maurer wrote. "It is not reasonable to conclude on these facts that she abandoned all rights to the property."

Many state constitutions offer stricter privacy protection than the federal 4th Amendment counterpart. We pass the ruling along in hopes of getting more state courts to rule this way.