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Issues in the American Creed (Constitutional Law and related matters)
Topic: Issues in the American Creed (Constitutional Law and related matters) (Read 199093 times)
Issues in the American Creed (Constitutional Law and related matters)
April 14, 2009, 04:54:10 PM »
Video Link Here:http://governor.state.tx.us/news/press-release/12227/
AUSTIN – Gov. Rick Perry today joined state Rep. Brandon Creighton and sponsors of House Concurrent Resolution (HCR) 50 in support of states’ rights under the 10th Amendment to the U.S. Constitution.
“I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state,” Gov. Perry said. “That is why I am here today to express my unwavering support for efforts all across our country to reaffirm the states’ rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union.”
A number of recent federal proposals are not within the scope of the federal government’s constitutionally designated powers and impede the states’ right to govern themselves. HCR 50 affirms that Texas claims sovereignty under the 10th Amendment over all powers not otherwise granted to the federal government.
It also designates that all compulsory federal legislation that requires states to comply under threat of civil or criminal penalties, or that requires states to pass legislation or lose federal funding, be prohibited or repealed.
HCR 50 is authored by Representatives Brandon Creighton, Leo Berman, Bryan Hughes, Dan Gattis and Ryan Guillen.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #1 on:
April 21, 2009, 10:51:11 AM »
Transnational strategies to eviscerate the Second Amendment via the UN:
With Harold Koh at the State Department this is going to get REALLY bad!
The case for a federalism amendment
Reply #2 on:
April 23, 2009, 11:03:13 AM »
By RANDY E. BARNETT
In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."
Suffragettes celebrate the 19th Amendment, 1920.
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.
What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?
One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section
that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax. There is precedent for repealing an amendment. In 1933, the 21st Amendment repealed the 18th Amendment that had empowered Congress to prohibit the sale of alcohol.
Alternatively, to restore balance between federal and state power and better protect individual liberty, the repeal of the income tax amendment could be folded into a new "Federalism Amendment" like this:
Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.
Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.
Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.
Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.
Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.
Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.
Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not "commerce . . . among the several states," but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.
Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.
Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.
Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.
Could such a Federalism Amendment actually be adopted? Stranger things have happened -- including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people. And this Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution.
Mr. Barnett is a professor of constitutional law at Georgetown University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #3 on:
April 27, 2009, 12:42:00 PM »
"In response to an unprecedented expansion of federal power, citizens have held hundreds of 'tea party' rallies around the country, and various states are considering 'sovereignty resolutions' invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges 'the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.' While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution. An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel. ...[A] Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution."
--Georgetown University professor of constitutional law Randy Barnett
"It really is difficult to imagine how people who have entirely given up managing their own affairs could make a wise choice of those who are to do that for them. One should never expect a liberal, energetic, and wise government to originate in the votes of a people of servants." --French political thinker and historian Alexis de Tocqueville (1805-1859)
"One of the most important events of our lifetimes may have just transpired. A federal agency has decided that it has the power to regulate everything, including the air you breathe. Nominally, the Environmental Protection Agency's announcement ... only applies to new-car emissions. But pretty much everyone agrees that the ruling opens the door to regulating, well, everything. According to the EPA, greenhouse gases include carbon dioxide -- the gas you exhale -- as well as methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. It is literally impossible to imagine a significant economic or human activity that does not involve the production of one of these gases. Don't think just of the gas and electricity bills. Cow flatulence is a serious concern of the EPA's already. What next? ... Whether or not global warming is a crisis that warrants immediate, drastic action (I don't think it does), and whether or not such wholesale measures would be an economic calamity (they would be), the EPA's decision should be disturbing to people who believe in democratic, constitutional government. ...[T]he EPA has launched its power grab over all that burns, breathes, burps, flies, drives and passes gas."
--National Review editor Jonah Goldberg
Reply #4 on:
May 05, 2009, 12:15:06 PM »
"How did it happen? How did our national government grow from a servant with sharply limited powers into a master with virtually unlimited power? In part, we were swindled. There are occasions when we have elevated men and political parties to power that promised to restore limited government and then proceeded, after their election, to expand the activities of government. But let us be honest with ourselves. Broken promises are not the major causes of our trouble. Kept promises are. All too often we have put men in office who have suggested spending a little more on this, a little more on that, who have proposed a new welfare program, who have thought of another variety of 'security.' We have taken the bait, preferring to put off to another day the recapture of freedom and the restoration of our constitutional system. We have gone the way of many a democratic society that has lost its freedom by persuading itself that if 'the people' rule, all is well." --former Arizona senator Barry Goldwater (1909-1998)
Reply #5 on:
May 05, 2009, 12:18:34 PM »
Cross referencing this excellent read here:
Montana's 10th Amendment challenge
Reply #6 on:
May 07, 2009, 01:04:33 PM »
The Second and Tenth Amendments
In what amounts to a serious Second and Tenth Amendment challenge to federal authority, the Montana Legislature passed and its Democrat governor signed a law which specifies that guns which are produced, sold and maintained within the state are exempt from federal regulations.
Essentially, Montana is setting up a Tenth Amendment challenge -- as soon as the first arrest is made for purchasing a gun without the user submitting to federal mandates such as background checks, licensing and registration, the state will assert its Tenth Amendment rights under our Constitution.
Other states are preparing similar legislation, but I would suggest one of them take the Tenth Amendment challenge a major step forward.
Let's see a state pass a law requiring that any and all federal authorities who wish to carry a firearm within the boundary of said state, must be in possession of a "right to carry" permit issued and authorized by that state's governor.
And speaking of "right to carry," in my home state of Tennessee, legislators are considering a bill to allow duly authorized carry permit holders to keep their weapons on their person in restaurants which serve alcohol (not to be confused with bars), similar to surrounding states.
The statists are protesting that doing so will undoubtedly lead to tragedy. However, one would be hard pressed to find any incident in any year when an authorized holder of a carry permit committed a felony with their weapon. By contrast, in the latest year of record, there were 13,470 fatalities involving alcohol-impaired drivers.
Now that is a tragedy. Perhaps they should not allow alcohol in bars...
Of course, this whole debate on federal versus state gun regulations and concealed carry permits is a straw man. Personally, my right-to-carry permit is the Second Amendment...
BO shreds the Constitution
Reply #7 on:
May 11, 2009, 11:06:24 AM »
"Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world." --U.S. Senator Daniel Webster (1782-1852)
Obama keeps shredding the Constitution
"Barack Obama's vision of America is one in which a President of the United States can fire the head of General Motors, tell banks how to bank, control the medical system and take charge of all sorts of other activities for which neither he nor other politicians have any expertise or experience. The Constitution of the United States gives no president, nor the entire federal government, the authority to do such things. But spending trillions of dollars to bail out all sorts of companies buys the power to tell them how to operate. Appointing judges to the federal courts -- including the Supreme Court -- who believe in expanding the powers of the federal government to make arbitrary decisions, choosing who will be winners and losers in the economy and in the society, is perfectly consistent with a vision of the world where self-confident and self-righteous elites rule according to their own notions, instead of merely governing under the restraints of the Constitution." --Hoover Institution economist Thomas Sowell
"Given how congressional leaders have abdicated their responsibilities, perhaps it's not surprising that the secured creditors who challenged the Obama-imposed Chrysler merger deal were too polite to note that the president lacks statutory authority to intervene in the car industry. 'Even assuming that TARP provides the Treasury Department with authority to provide funding to the Debtors,' they said, it is neither fair nor legal to let unsecured creditors such as the United Auto Workers get more of their money back than creditors who by statute have a superior claim. But for a president who tramples on the Constitution in his rush to save companies from the consequences of their own bad decisions, the bankruptcy code is no obstacle." --columnist Jacob Sullum
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #8 on:
May 11, 2009, 12:05:54 PM »
The truth in the Thomas Sowell quote of what is happening now is sickening. We justify our accelerating ignorance of constitutional limits on federal power by pointing to a slippery slope tradition of all recent administration doing the same and court opinions in place that uphold most of it. We can expand the powers of the federal government simply because of a 53% majority that for the most part didn't know what the were voting for or against. It used to take a grueling, nationwide amendment process to do that.
Feds taking over all water?
Reply #9 on:
June 01, 2009, 10:53:39 PM »
By Jack Hoogendyk
Michigan, through its Department of Environmental Quality (DEQ) is one of only two states in the union that regulates wetlands with a state agency rather than through the U.S. Army Corps of Engineers.
This has been a problem, because the state guidelines are much more strict than the federal guidelines. Additionally, the DEQ has proven to be arbitrary and capricious in its decision making and has often caused long, unnecessary delays in approving permits.
While the concerns about over-regulation by a state agency are valid, they may be rendered moot by recent efforts in Congress.
U.S. Sen. Russ Feingold has introduced a bill with 23 sponsors including Senators Carl Levin and Debbie Stabenow.
Senate Bill S787 is titled, “To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.”
Notice they start the description with the words “pollution control.” That makes it sound caring and good, doesn’t it?
The fact is, this legislation will put ALL surface waters in the United States of America under congressional jurisdiction.
The bill language has a couple of key phrases in it. The first changes the definition of what is under congressional jurisdiction. Ever since the Commerce Clause of the Constitution and several test cases in the Supreme Court, Congress has had jurisdiction over navigable waters. The meaning of that word has been argued, but according to precedent and legal definition, navigable includes anything you can get a canoe down, or anything that is connected by water to the same.
No matter, because under S787, the word navigable is stricken, which means now ALL surface water is under congressional jurisdiction.
Additionally, in case there were any question of state’s rights, the bill also states that this applies to interstate and intrastate waters. That means there is no state sovereignty over waters within that state’s boundaries.
And, if you have any doubt as to what the congressional definition of “waters” is, they spell that out, too. It includes, “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”
The bottom line is this: Congress is taking over all the water.
If the Obama administration and Congress are anything like this state’s governor and her administration, you will see free trade and commerce come to a virtual standstill. Manufacturing, especially, will come to a screeching halt.
Water is an essential resource in the manufacture of virtually any consumable or durable good. Without ready access, manufacturers will be stifled in their attempts to create new products for market and the jobs that go with them.
Jack Hoogendyk is a former state legislator and executive director of CIVPRO, a nonprofit property rights organization based in Michigan
Now mind you Michigans DEQ water quality standards are much stricter than the EPA . So this isn't about pollution this is about controll over the states and manufacturing.Also this will then enable the feds to start draining the great lakes and pumping the water else where which every Michigander is opposed to except the sellout obamites levin and stabenow.
The stictch in time that saved the nine
Reply #10 on:
June 06, 2009, 08:03:42 AM »
I wish he had mentioned the role of FDR's court-packing scheme in all of this:
By JEFF ROWES
The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.
Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.
The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.
It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.
The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.
The absence of meaningful constitutional limits on the power of government over property and the economy has had consequences that should cause both liberals and conservatives to rethink the wisdom of sweeping judicial deference. For example, last fall Congress enacted the Troubled Asset Relief Program, putting hundreds of billions of dollars at the personal discretion of the secretary of the Treasury. This grant of authority -- which violates the basic constitutional duty of Congress to control the purse laid out in Article I, Section 8 -- transformed the secretary into the most powerful unelected official in American history. Such power, once acquired, is rarely relinquished.
None of this would have been thinkable, much less possible, without the longstanding refusal of the Supreme Court to enforce clear constitutional boundaries on the elected branches.
In another example, America has become a patchwork quilt of laws serving special interests because courts refuse to protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four (according to recent research of Morris Kleiner published by the National Bureau of Economic Research), and the clamor by industry groups for more licensing grows unabated.
Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the "privileges or immunities" clause of the 14th Amendment.
Bad government is usually the result of runaway government. And runaway government is usually the result of government exceeding its constitutional prerogatives. Because they have a far stronger stake in the integrity of checks and balances on government power than in the culture war, conservatives and liberals should declare a truce over "activism" and reflect on the need to take the whole Constitution seriously.
Judges should be neither active nor passive, neither aggressive nor deferential. In a word, they should be engaged -- engaged in protecting constitutional rights to property and economic liberty, because these areas of the law have the most impact on our daily lives.
Mr. Rowes is an attorney at the Institute for Justice in Arlington, Va.
AZ fights subsidies of private sector
Reply #11 on:
June 06, 2009, 08:23:57 AM »
By DARCY OLSEN
By any reading of the man, George W.P. Hunt -- Arizona's first governor -- was a progressive Democrat. He favored creating an income tax, extending the right to vote to women, and passing compulsory education laws. But when it came to drafting a constitution that would bring Arizona into the union as the 48th state, "Old Walrus," as he was called for his weight of about 300 lbs and his handlebar mustache, presided over a convention in 1910 that banned nearly all government subsidies to private business.
Hunt would probably be amazed at what's happening in Arizona today, as the old battles are once again being fought -- this time in the state Supreme Court, which is taking up a lawsuit to determine whether cities can give subsidies to private companies.
Arizona's founders banned gifts to private companies as the result of bitter experience. In the closing decades of the 19th century, local governments borrowed money to force-feed private railroad development. Pima County outside of Tucson, for example, took out $300,000 in bonds in 1882 for a railroad that promised to build some 100 miles of track. The money was spent but the railroad dissolved after a mere 10 miles of track was constructed. The bonds were worthless, but taxpayers were still on the hook for the money.
This time around it's shopping malls and the like, and the preferred subsidy is tax rebates rather than bonds. But the result is the same. Local governments are foisting the cost of private development onto taxpayers as private companies promise that with just a few tax dollars they will create a wealth of new jobs.
People aren't buying it, and there's a revolt underway against government subsidized megaprojects. In November, voters elected mayors in Mesa, Scottsdale and Tempe who promised to fight taxpayer subsidies. In Phoenix, voters have elected three candidates to the city council who oppose wooing developers with taxpayer money. And it is in Phoenix where the biggest fight is taking place.
Two years ago, the city signed a contract with developer Thomas J. Klutznick, who is building an outdoor mall. The city has to rebate to him $97.4 million in sales taxes over the next 11 years, in return for which it gets 200 parking spaces for commuters catching a municipal bus. The mall, called CityNorth, will be home to an Ann Taylor Loft and other retailers, as well as residential apartments that are already being rented. Arizona Republic columnist Laurie Roberts summed up the deal earlier this year by noting the city will spend about $487,000 for each commuter parking spot. "Wouldn't it be cheaper to just chopper them in to work?" she wrote.
Nonetheless, CityNorth is the kind of project that city planners dream about as they seek to remake urban landscapes -- grand in scale as it stretches 144 acres, and grand in impact as it serves tens of thousands of residents and shoppers. City officials promise it will create a "second downtown" for Phoenix.
That second downtown will be at the expense of employers who are lured away from other cities, and give companies in the new mall a tax advantage over business outside of it. That's hardly fair, so the Goldwater Institute, a free-market think tank in Phoenix that I run, sued Phoenix Mayor Phil Gordon in state court on behalf of Meyer Turken, who owns a real estate company, and five business owners. The suit seeks to enforce the provision in Old Walrus's constitution that bans government handouts. The provision is known as the "Gift Clause."
We lost the first round in the case, but two days before Christmas last year the Arizona Court of Appeals unanimously reversed the lower court ruling and said, "We think these payments are exactly what the Gift Clause was intended to prohibit." Phoenix then took Turken v. Gordon to the state Supreme Court, which this week agreed to hear the case.
Cities across Arizona are waiting to see what the court does. This has become a fight over just how involved in the economy government should be allowed to get -- whether local and state governments should be in the business of bolstering some, but not others, with tax breaks.
Government-sponsored development isn't popular. Public Opinion Strategies polling found earlier this year that 80% of Phoenix taxpayers oppose their city's subsidies for CityNorth and agree that the developer and the retailers who move into the new mall "should pay their own way." The subsidy is also attracting opposition outside of Phoenix. Last week, Mayor W.J. Lane of neighboring Scottsdale won support from his city council to file a friend-of-the-court brief in support of our lawsuit.
New York, Maryland and 34 other states have gift clauses similar to Arizona's. Thus, Arizona's legal precedent could influence how local and state governments approach redevelopment across the country. On the federal level, any member of Congress upset with the bailouts of the auto or financial industries might want to consider proposing a Gift Clause amendment to the U.S. Constitution that would explicitly ban bailouts that benefit one company or industry.
When asked about the lawsuit, Phoenix Deputy City Manager David Krietor told a reporter that "This is a landmark case that will dramatically impact our ability to do economic development." He's right. But Mr. Krietor should be considering whether it's right for the government to "do" this at all. As his Democratic progressives came to understand in Old Walrus's day, government payouts to private businesses don't always pay off -- and often it's taxpayers who end up having to pay up.
Ms. Olsen is president & CEO of the Goldwater Institute of Phoenix, Ariz., which is litigating Turken v. Gordon.
SC SCT forces Gov to take Fed money :-(
Reply #12 on:
June 06, 2009, 08:36:02 AM »
second post of the morning:
S.C. Supreme Court Says Gov. Sanford Must Take Stimulus Cash
The long-running debate between the Republican governor of South Carolina, Mark Sanford, and the Republican-controlled state legislature came to an unfortunate conclusion Thursday as the state's Supreme Court ruled that Gov. Sanford must request the $700 billion in federal funding he had thus far refused. Sanford had argued that taking the money now would mean more debt later as the services continued but federal funds were gone. He wanted instead to pay down the state's debt with the money, if he had to take it at all. The Republicans in the legislature, however, stole a page from the Democrats' playbook and accused the governor of cheating schools out of money. After all, it's always a losing proposition to try to hold education spending steady, much less cut it, because not enough people see that as education spending has gone through the roof over the last 40 years, the quality of education has gone down. Regardless, Sanford will not appeal the decision but lamented the missed chance to show other states "a different way than simply taking this money and spending it."
Reply #13 on:
June 06, 2009, 05:47:16 PM »
Third post of the day:
I began read a book today (author's name is East Euro so I fear to assay spelling it from memory) and he referenced Aristotle's concept of man pursuing happiness.
Now where have we heard that phrase before?
Does anyone have any input on the Aristotlean concept and its influence on our Founding Fathers?
Reply #14 on:
June 07, 2009, 08:18:39 AM »
Quote from: Crafty_Dog on June 06, 2009, 05:47:16 PM
Third post of the day:
I began read a book today (author's name is East Euro so I fear to assay spelling it from memory) and he referenced Aristotle's concept of man pursuing happiness.
Now where have we heard that phrase before?
Does anyone have any input on the Aristotlean concept and its influence on our Founding Fathers?
Men are what they are because their characters, but it is in action that they find happiness or the reverse.” --Aristotle
I read it in 1998 so I wouldn't currently be able to contribute to a discussion on it but
s by Aristotle probably contains the ideas you are looking for.
You should start a book club
You might find these helpful
1. The translation of "eudaimonia" should be compatible not only with Aristotle's theory but also (at first blush) with theories which identify eudaimonia with a life of pleasant amusements, a life devoted to the acquisition of wealth, a life devoted to the pursuit of honor, a life of public service in which one exercises civic virtues, and so on. The translation should make plausible the claims which Aristotle says everyone accepts about eudaimonia: that it is that for the sake of which a human being does everything that they do, that it is not pursued for the sake of some further goal, that the life of someone who is eudaimon is a pleasant life, etc.
2. "Eudaimonia" in Greek - Literally 'having a good guardian spirit', the Greek term "eudaimonia" has a much more objective meaning. To be eudaimon is to be successful, to have what is most desirable, to flourish. There is some disagreement about what sort of life is most flourishing. Some say it is a life of pleasure, others of honor, some a wealthy life, others a virtuous one.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #15 on:
June 07, 2009, 08:42:33 AM »
Thank you Rachel. You are quite a well-read woman!!!
Of the two entries I liked
a bit more.
The second and the fourteenth
Reply #16 on:
June 08, 2009, 08:26:13 AM »
Pasted here from the Legal Issues thread on P&R forum:
June 08, 2009, 4:00 a.m.
Bill of Rights, Inc.
Could a Second Amendment case establish Fourteenth Amendment originalism?
By Will Haun
The Seventh Circuit Court of Appeals recently decided McDonald v. City of Chicago, a challenge to Chicago’s gun ban. The case has major implications for protecting gun rights at the state level, but its importance goes further than that. Depending on what the Supreme Court does, it could make originalism — relying on the text of the Constitution and its amendments as they were understood when enacted — the accepted standard for interpreting the Bill of Rights, rather than the whims of a handful of justices.
The plaintiff’s case in McDonald is based on the Second Amendment, but also on the Fourteenth. Last year, in Heller v. District of Columbia, the Supreme Court ruled that the Second Amendment protects an individual’s right to own firearms against infringement by the federal government. But can a state or local government infringe that right? This question hinges on the constitutional principle of “incorporation” — the notion that the Fourteenth Amendment makes the states subject to the Bill of Rights.
When it was enacted in 1791, the Bill of Rights applied to the federal government only. Individual states could (and did) restrict free speech, for example, or have an established church. The states were beholden only to their own laws and constitutions and to certain provisions in Article I of the U.S. Constitution. After the Civil War, as Justice Clarence Thomas wrote in Zelman v. Simmons-Harris (2002), “the Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law.” But what “liberty” was included in this guarantee, and what was meant by “due process”?
The full text of the first section of the Fourteenth Amendment reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Ringing phrases, to be sure, but somewhat short on specifics. In fact, the meaning of every major clause in the first section is disputed, and has been since the amendment’s enactment in 1868.
Case law provides little clarity. The first major Supreme Court decision to grapple with these questions came in the Slaughterhouse cases of 1873, but — to quote Justice Thomas again, this time from his dissent in Saenz v. Roe (1999) — that decision “all but read the Privileges or Immunities Clause out of the Constitution.” By adopting a narrow interpretation of the clause, the Court gave states wide latitude to enact laws they thought were necessary.
Towards the end of the 19th century, however, as various reform movements took hold, restrictive state laws came to be seen as an obstacle to progress. So the justices eventually concluded, as Prof. James W. Ely of Vanderbilt Law School notes, “that the Fourteenth Amendment did confer a national standard of rights against the states.” But instead of reviving the “privileges or immunities” clause to enforce this standard (and thus reversing Slaughterhouse), they seized upon the “due process” clause.
That clause may simply seem to restate the Fifth Amendment requirement guaranteeing an individual’s right to a day in court and the protections of the legal process, this time applying it to the states as well as the federal government. That’s the way many modern originalists understand the clause. But as reform took hold, courts began interpreting it to mean that states had no power to deprive citizens of important rights, whether or not those rights were mentioned in the Constitution. The judges themselves would decide what rights fell under the clause’s protection. They called this doctrine “substantive due process” to distinguish it from the traditional day-in-court meaning, which came to be called “procedural due process.”
At first, substantive due process was used mostly to reverse state encroachments on economic choices, like freedom of contract. If a baker wanted to work 70 or 80 hours a week, no one could stop him. But as the doctrine evolved, justices used it to incorporate selective provisions of the Bill of Rights, making them enforceable against state governments (the Second Amendment, among other provisions, was excluded for various reasons). And as the 20th century wore on, these two trends diverged: Economic regulation became popular among the progressives on the Court, while regulation of individuals’ “private” conduct became even less so. The justices modified the doctrine to fit their new preferences.
The result, Ely notes, was to create “an artificial division between economic rights, which the pro–New Deal court wanted to reject, and personal rights, which they wanted to expand to mean virtually anything.” Since the 1940s, the concept of substantive due process has been greatly expanded by the Court, not just to protect the Bill of Rights from abridgment by state action, but to create rights to privacy and abortion, a “wall of separation” between church and state, and many other inventions of the Warren and Berger Courts.
Many originalists, such as David Forte, co-editor of The Heritage Guide to the Constitution, have rightly argued that “due process was never meant to have a substantive meaning,” but merely a judicial one. This argument provides the basis for many conservatives and originalists to stand against the whole principle of incorporation. In a strict interpretation of this view, Chicago is entitled to restrict gun rights, since the Second Amendment (and the rest of the Bill of Rights) does not apply to it.
To parry this objection, the briefs in McDonald that argue for incorporation rely on recent scholarship that justifies incorporation on originalist grounds. Prof. Michael Kent Curtis, of Wake Forest School of Law, who worked on an amicus brief in McDonald, used the broad text of the Fourteenth Amendment, statements made in the 39th Congress (which passed the amendment), and the legal theories of its sponsors to conclude in his 1990 book No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights that incorporation through the “privileges or immunities” clause was part of the amendment’s intent.
Other originalists, such as Jim Bond, professor emeritus at Seattle University School of Law, have questioned how widespread the agreement on incorporation was, especially in the southern-state ratifying conventions that meticulously reviewed the amendment before passing it. But there is still good reason to believe, as Forte says, that some “federal package of rights is protected by the privileges or immunities clause.”
Exactly what rights are included in that package is unclear, but the connection of incorporation with the “privileges or immunities” clause provides another weapon for civil-liberties lawyers. That explains why both the progressive Constitutional Accountability Center (a “living Constitution” advocate) and the libertarian Institute for Justice filed amicus briefs in McDonald v. Chicago in favor of incorporating the Second Amendment. In a case of politics making strange bedfellows, the amicus briefs put those two groups on the same side as the National Rifle Association, which is co-plaintiff with McDonald.
In a decision delivered earlier this week, the Seventh Circuit upheld Chicago’s ban on firearms, but the decision left the merits of incorporation through the “privileges or immunities” clause to the Supreme Court. Alan Gura, arguing on behalf of the NRA and McDonald, anticipated this; he noted in oral arguments that his side intends to “preserve this argument for the upper [Supreme] Court.” (Gura was also the lawyer for the plaintiff in Heller v. D.C.)
Assuming the Supreme Court agrees to review McDonald, its decision could send shock waves through constitutional law. If the “privileges or immunities” clause becomes the new justification for incorporating the Bill of Rights into state law, the days of “substantive due process,” and all the judicial overreaching it has brought, could be numbered. Still, the fact that some liberals support this interpretation is worrisome. Would it merely substitute a new all-purpose tool for legislating from the bench in place of the old one?
Not necessarily. Basing decisions on the text-based “privileges or immunities” clause, rather than the judge-created doctrine of “substantive due process,” would naturally lend itself to the increased use of originalist analysis of the Fourteenth Amendment. The focus of inquiry would be, in Forte’s words, “what could have been reasonably understood to be the ‘Privileges or Immunities’ of Federal Citizenship by the amendment’s framers” — limiting the ability of future justices to “find” new “rights” protected by it. So no matter how the incorporation debate shakes out, an endorsement of originalism would be a victory for conservatives who prize intellectual honesty in constitutional interpretation.
Seemingly aware of these implications, the Left is trying to preserve the contrivances of “substantive due process” in an originalist guise. They want to define “privileges” and “immunities” as broadly as possible, to include what Doug Kendall of the Constitutional Accountability Center calls “very important progressive values,” such as abortion rights and same-sex marriage. The goal is to continue expanding “individual rights” while permitting restriction of property rights and economic freedoms. So if the Supreme Court decides in McDonald’s favor, it could end the controversy over gun rights but begin a host of new battles in other areas.
Yet Robert Levy, chairman of the Cato Institute, is not afraid of opening a can of worms. He says that libertarians see McDonald as an opportunity “to resurrect economic liberties suspended by the Court under the post–New Deal version of substantive due process.” Conservatives should see this case as a rare opportunity to base any incorporation of the Bill of Rights on originalist grounds — an opportunity they should waste no time in seizing, for it may not come again.
— Will Haun is a recent graduate of American University and is policy chairman of the Young Conservative Coalition. He is interning at the Heritage Foundation’s Center for Legal and Judicial Studies this summer before beginning law school at Catholic University this fall.
National Review Online -
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #17 on:
June 10, 2009, 10:03:01 PM »
I don't think I am well read yet but I intend to be. However, I don't think it counts if you don't remember what you read or didn't really understand it the first place both are true for Aristotle
Rights are from the Creator
Reply #18 on:
June 14, 2009, 10:06:38 PM »
Alabama 1901, Preamble
We the people of the State of Alabama , invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution..
Alaska 1956, Preamble We, the people of Alaska , grateful to God and to those who founded our nation and pioneered this great land.
Arizona 1911, Preamble We, the people of the State of Arizona , grateful to Almighty God for our liberties, do ordain this Constitution...
Arkansas 1874, Preamble We, the people of the State of Arkansas , grateful to Almighty God for the privilege of choosing our own form of government...
California 1879, Preamble We, the People of the State of California , grateful to Almighty God for our freedom...
Colorado 1876, Preamble We, the people of Colorado , with profound reverence for the Supreme Ruler of Universe...
Connecticut 1818, Preamble. The People of Connecticut, acknowledging with gratitude the good Providence of God in permitting them to enjoy.
Delaware 1897, Preamble Through Divine Goodness all men have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences...
Florida 1885, Preamble We, the people of the State of Florida , grateful to Almighty God for our constitutional liberty, establish this Constitution...
Georgia 1777, Preamble We, the people of Georgia , relying upon protection and guidance of Almighty God, do ordain and establish this Constitution...
Hawaii 1959, Preamble We , the people of Hawaii , Grateful for Divine Guidance ... Establish this Constitution.
Idaho 1889, Preamble We, the people of the State of Idaho , grateful to Almighty God for our freedom, to secure its blessings.
Illinois 1870, Preamble We, the people of the State of Illinois, grateful to Almighty God for the civil , political and religious liberty which He hath so long permitted us to enjoy and looking to Him for a blessing on our endeavors.
Indiana 1851, Preamble We, the People of the State of Indiana , grateful to Almighty God for the free exercise of the right to choose our form of government.
Iowa 1857, Preamble We, the People of the St ate of Iowa , grateful to the Supreme Being for the blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of these blessings, establish this Constitution.
Kansas 1859, Preamble We, the people of Kansas , grateful to Almighty God for our civil and religious privileges establish this Constitution.
Kentucky 1891, Preamble.. We, the people of the Commonwealth are grateful to Almighty God for the civil, political and religious liberties..
Louisiana 1921, Preamble We, the people of the State of Louisiana , grateful to Almighty God for the civil, political and religious liberties we enjoy.
Maine 1820, Preamble We the People of Maine acknowledging with grateful hearts the goodness of the Sovereign Ruler of the Universe in affording us an opportunity .. And imploring His aid and direction.
Maryland 1776, Preamble We, the people of the state of Maryland , grateful to Almighty God for our civil and religious liberty...
Massachusetts 1780, Preamble We...the people of Massachusetts, acknowledging with grateful hearts, the goodness of the Great Legislator of the Universe In the course of His Providence, an opportunity and devoutly imploring His direction
Michigan 1908, Preamble. We, the people of the State of Michigan , grateful to Almighty God for the blessings of freedom, establish this Constitution.
Minnesota, 1857, Preamble We, the people of the State of Minnesota, grateful to God for our civil and religious liberty, and desiring to perpetuate its blessings:
Mississippi 1890, Preamble We, the people of Mississippi in convention assembled, grateful to Almighty God, and invoking His blessing on our work.
Missouri 1845, Preamble We, the people of Missouri , with profound reverence for the Supreme Ruler of the Universe, and grateful for His goodness . Establish this Constitution...
Montana 1889, Preamble. We, the people of Montana , grateful to Almighty God for the blessings of liberty establish this Constitution ...
Nebraska 1875, Preamble We, the people, grateful to Almighty God for our freedom . Establish this Constitution.
Nevada 1864, Preamble We the people of the State of Nevada , grateful to Almighty God for our freedom, establish this Constitution...
New Hampshire 1792, Part I. Art. I. Sec. V Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience.
New Jersey 1844, Preamble We, the people of the State of New Jersey, grateful to Almighty God for civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing on our endeavors.
New Mexico 1911, Preamble We, the People of New Mexico, grateful to Almighty God for the blessings of liberty..
New York 1846, Preamble We, the people of the State of New York , grateful to Almighty God for our freedom, in order to secure its blessings.
North Carolina 1868, Preamble We the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for our civil, political, and religious liberties, and acknowledging our dependence upon Him for the continuance of those...
North Dakota 1889, Preamble We , the people of North Dakota , grateful to Almighty God for the blessings of civil and religious liberty, do ordain...
Ohio 1852, Preamble We the people of the state of Ohio , grateful to Almighty God for our freedom, to secure its blessings and to promote our common.
Oklahoma 1907, Preamble Invoking the guidance of Almighty God, in order to secure and perpetuate the blessings of liberty, establish this
Oregon 1857, Bill of Rights, Article I Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their consciences
Pennsylvania 1776, Preamble We, the people of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance....
Rhode Island 1842, Preamble. We the People of the State of Rhode Island grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing...
South Carolina , 1778, Preamble We, the people of he State of South Carolina grateful to God for our liberties, do ordain and establish this Constitution.
South Dakota 1889, Preamble We, the people of South Dakota , grateful to Almighty God for our civil and religious liberties ...
Tennessee 1796, Art. XI..III. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their conscience...
Texas 1845, Preamble We the People of the Republic of Texas , acknowledging, with gratitude, the grace and beneficence of God.
Utah 1896, Preamble Grateful to Almighty God for life and liberty, we establish this Constitution.
Vermont 1777, Preamble Whereas all government ought to enable the individuals who compose it to enjoy their natural rights, and other blessings which the Author of Existence has bestowed on man ..
Virginia 1776, Bill of Rights, XVI Religion, or the Duty which we owe our Creator can be directed only by Reason and that it is the mutual duty of all to practice Christian Forbearance, Love and Charity towards each other
Washington 1889, Preamble We the People of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this Constitution
West Virginia 1872, Preamble Since through Divine Providence we enjoy the blessings of civil, political and religious liberty, we, the people of West Virginia reaffirm our faith in and constant reliance upon God ....
Wisconsin 1848, Preamble We, the people of Wisconsin , grateful to Almighty God for our freedom, domestic tranquility...
Wyoming 1890, Preamble We, the people of the State of Wyoming , grateful to God for our civil, political, and religious liberties, establish this Constitution...
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #19 on:
June 16, 2009, 12:02:32 AM »
Looks to me like 49 states derive individual rights from the Creator. Missing from the list: Vermont, District of Columbia and one poster here who believes the right of a store in suburban Paris to sell products of their own choosing, free from disruption, is derived from LA County and the 9th Circuit, not from the Creator.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #20 on:
June 16, 2009, 06:57:01 AM »
Incorp'g the 2d via Citizenship clause?
Reply #21 on:
June 18, 2009, 03:37:44 PM »
Hat tip to BBG:
Will Second Amendment Be Incorporated Through Citizenship Clause?
Posted Jun 17, 2009, 06:49 am CDT
By Debra Cassens Weiss
Federal appeals courts hearing gun rights cases after the Supreme Court’s Second Amendment ruling last year in District of Columbia v. Heller are confronting an old issue: whether the amendment applies to restrict state and local laws under the incorporation doctrine.
Heller found that the Second Amendment protected an individual right to own a gun in the District of Columbia, a federal enclave. New suits challenging state and local laws have resulted in a split. Two federal appeals courts refused to apply the Second Amendment to local laws without express Supreme Court authorization. A third disagreed.
University of Texas law professor Sanford Levinson told the New York Times that the case could present a dilemma for some conservative justices who scoffed at incorporation arguments in the past. Because of the touchy issues, he says he would be surprised if the U.S. Supreme Court agrees to hear new cases on the issue.
Yale law professor Akhil Reed Amar told the Times that incorporation fell out of favor after the 1960s, but it’s being resurrected by liberal scholars. Most of the Bill of Rights have been applied to the states under liberal Warren Court rulings that found the 14th Amendment required incorporation. One exception is the Seventh Amendment right to a jury trial, which has not been applied to the states.
“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Amar told the Times. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”
He believes the justices will support incorporation. A post at the Volokh Conspiracy after the Heller ruling cited evidence that Justice Antonin Scalia may be on board.
Scalia’s Heller opinion highlights the importance to the newly freed slaves of the right to keep and bear arms in the home—the kind of evidence used to support incorporation. One Scalia passage hints that he believes the amendment could be incorporated through the 14th Amendment’s citizenship clause, rather than due process safeguards, says the Volokh Conspiracy writer, University of Minnesota law professor Dale Carpenter.
Govt health care violates 9th?
Reply #22 on:
June 22, 2009, 08:10:37 AM »
By DAVID B. RIVKIN JR. and LEE A. CASEY
Is a government-dominated health-care system unconstitutional? A strong case can be made for that proposition, based on the same "right to privacy" that underlies such landmark Supreme Court decisions as Roe v. Wade.
The details of this year's health-care reform bill are still being hammered out. But the end result is sure to be byzantine in complexity. Washington will have immense say over how, when and through whom Americans are treated. Moreover, despite the administration's public pronouncements about painless cuts in wasteful spending, only the most credulous believe that some form of government-directed health-care rationing can be avoided as a means of controlling costs.
The Supreme Court created the right to privacy in the 1960s and used it to strike down a series of state and federal regulations of personal (mostly sexual) conduct. This line of cases began with Griswold v. Connecticut in 1965 (involving marital birth control), and includes the 1973 Roe v. Wade decision legalizing abortion.
The court's underlying rationale was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), "these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life."
It is, of course, difficult to imagine choices more "central to personal dignity and autonomy" than measures to be taken for the prevention and treatment of disease -- measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be "necessary" by an expectant mother and her physician.
If the government cannot proscribe -- or even "unduly burden," to use another of the Supreme Court's analytical frameworks -- access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?
This type of "burden" analysis will be especially problematic for a national health system because, in the health area, proper care often depends upon an individual's unique physical and even genetic history and characteristics. One size clearly does not fit all, but that is the very essence of governmental regulation -- to impose a regularity (if not uniformity) in the application of governmental power and the dispersal of its largess. Taking key decisions away from patient and physician, or otherwise limiting their available choices, will render any new system constitutionally vulnerable.
It is true, of course, that forms of rationing already exist in our current system. No one who has experienced the marked reluctance to treat aggressively lethal illnesses in the elderly can doubt that. However, what may be permissible for private actors -- including doctors and insurance companies -- is not necessarily lawful when done by the government.
Obviously, the government does not have to pay for any and all services individual citizens may desire. And simply refusing to approve a procedure or treatment under applicable reimbursement rules, as under the government-run Medicare and Medicaid, does not make the system unconstitutional. But if over time, as many critics fear, a "public option" health insurance plan turns into what amounts to a single-payer system, the constitutional issues regarding treatment and reimbursement decisions will be manifold.
The same will be true of a quasi-private system where the government claims a large role in defining acceptable health-insurance coverage and treatments. There will be all sorts of "undue burdens" on the rights of patients to receive the care they may want. Then the litigation will begin.
Anyone who imagines that Congress can simply avoid the constitutional issues -- and lawsuits -- by withdrawing federal court jurisdiction over the new health system must think again. A brief review of the Supreme Court's recent war-on-terror decisions, brought by or on behalf of detained enemy combatants, will disabuse that notion. This area of governmental authority was once nearly immune from judicial intervention. Over the past five years, however, the Supreme Court (supposedly the nonpolitical branch) has unapologetically transformed itself into a full-fledged, policy-making partner with the president and Congress.
In the process, the justices blew past specific congressional efforts to limit their jurisdiction and involvement like a hot rod in the desert. Questions of basic constitutionality (however the court may define them) cannot now be shielded from judicial review.
It is, of course, impossible to predict how and when the courts will ultimately rule on the new health system. Much depends on the details and the extent to which reasonable and practical private alternatives to the national plan remain. In crafting the law, however, its White House and congressional sponsors must keep privacy -- that near absolute right to personal autonomy they have so often praised and promoted -- squarely before them. The only thing that is certain today is that the courts, and not Congress, will have the last word.
Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush.
We still hold these truths , , ,
Reply #23 on:
July 02, 2009, 11:52:48 AM »
Independence Day 2009: We still hold these truths...
"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God. I know not what course others may take, but as for me, give me liberty or give me death!" --Patrick Henry
As we celebrate the 233rd year of our Declaration of Independence, let us look at the common parlance associated with the polar spectrum of current political ideology (while such a review is still permitted by the state), and explore what is meant by "Left versus Right," "Liberal versus Conservative" and "Tyranny versus Liberty"?
Tyranny v. Liberty (poster available at PatriotShop.US)
First, a little history.
On July 4th of 1776, our Founders, assembled as representatives to the Second Continental Congress, issued a declaration stating most notably: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. ... That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."
In other words, our Founders affirmed that our rights, which are inherent by Natural Law as provided by our Creator, can't be arbitrarily alienated by men like England's King George III, who believed that the rights of men are the gifts of government.
Our Founders publicly declared their intentions to defend these rights by attaching their signatures between July 4th and August 2nd of 1776 to the Declaration. They and their fellow Patriots pledged their lives, their fortunes, and their sacred honor as they set about to defend the Natural Rights of man.
At the conclusion of the American War for Independence in 1783, our Founders determined the new nation needed a more suitable alliance among the states than the Articles of Confederation. After much deliberation, they proposed the U.S. Constitution, adopted in 1787, ratified in 1788 and implemented in 1789 as subordinate guidance to our Declaration of Independence.
Since that time, generations of American Patriots have laid down their lives "to support and defend" our Constitution -- and I would note here that their sacred oath says nothing about a so-called "Living Constitution" as advocated by the political left.
Given that bit of history as a backdrop, consider the lexicography of our current political ideology.
On the dark side of the spectrum would be Leftists, liberals and tyrants.
(Sidebar: One should not confuse "classical liberalism" with "contemporary liberalism." The former refers to those, like Thomas Jefferson, who advocated individual liberty, while the latter refers to those, like Barack Hussein Obama, who advocate statism, which is the antithesis of liberty.)
Statism, as promoted by contemporary American liberals, has as its objective the establishment of a central government authorized as the arbiter of all that is "good" for "the people" -- and conferring upon the State ultimate control over the most significant social manifestation of individual rights, economic enterprise.
On the left, all associations between individuals ultimately augment the power and control of the State. The final expression and inevitable terminus of such power and control, if allowed to progress unabated, is tyranny.
The word "tyranny" is derived from the Latin "tyrannus," which translates to "illegitimate ruler."
Liberals, then, endeavor to undermine our nation's founding principles in order to achieve their statist objectives. However, politicians who have taken an oath to "support and defend" our Constitution, but then govern in clear defiance of that oath, are nothing more than illegitimate rulers, tyrants.
(Sidebar: Some Leftists contend that Communism and Fascism are at opposite ends of the political spectrum. Properly understood, however, both of these forms of government are on the left, because both have as a common end the establishment of an omnipotent state led by a dictator.)
Over on the "right wing" of the political spectrum, where the light of truth shines, would be "conservatives," from the Latin verb "conservare," meaning to preserve, protect and defend -- in this case, our Constitution.
American conservatives are those who seek to conserve our nation's First Principles, those who advocate for individual liberty, constitutional limits on government and the judiciary, and the promotion of free enterprise, strong national defense and traditional American values.
Contemporary political ideology is thus defined by tyrannus and conservare occupying the Left and Right ends of the American political spectrum, defining the difference between liberals and conservatives.
Though there are many devoted protagonists at both ends of this scale, the space in between is littered with those who, though they identify with one side or the other, are not able to articulate the foundation of that identity. That is to say, they are not rooted in liberal or conservative doctrine, but motivated by contemporaneous political causes associated with the Left or Right. These individuals do not describe themselves as "liberal" or "conservative" but as Democrat or Republican. Further, they tend to elect ideologically ambivalent politicians who are most adept at cultivating special interest constituencies.
That having been said, however, there is a major difference between those on the Left and the Right, as demonstrated by our most recent national elections. Those on the Left tend to form a more unified front for the purpose of electability; they tend to embrace a "win at all costs" philosophy, while those on the right tend to spend valuable political capital drawing distinctions between and among themselves.
I would suggest that this disparity is the result of the contest between human nature and Natural Law.
The Left appeals to the most fundamental human instincts to procure comfort, sustenance and shelter, and to obtain those basic needs by the most expedient means possible. The Left promises that the State will attain those needs equally, creating a path of least resistance for that fulfillment.
On the other end of the spectrum, the Right promotes the tenets of Natural Law -- individual liberty and its attendant requirements of personal responsibility and self-reliance.
Clearly, one of these approaches is far easier to sell to those who have been systematically dumbed down by government educational institutions and stripped of their individual dignity by the plethora of government welfare programs.
That easy sell notwithstanding, the threat of tyranny can eventually produce an awakening among the people and a reversal of trends toward statism. But this reversal depends on the emergence of a charismatic, moral leader who can effectively advocate for liberty. (Ronald Wilson Reagan comes to mind.)
For some nations, this awakening has come too late. The most notable examples in the last century are Russia, Germany, Italy and China, whose peoples suffered greatly under the statist tyrannies they came to embrace. In Germany and Italy, the state collapsed after its expansionist designs were forcibly contained. In Russia, the state collapsed under the weight of 70 years of economic centralization and ideological expansionism.
The Red Chinese regime, having witnessed the collapse of the USSR, has so far avoided its own demise by combining an autocratic government with components of a free enterprise economic system. (My contacts in China, including that nation's largest real estate developers and investment fund managers, believe the Red regime will be gone within five years.)
Of course, there exists an American option for the rejection of tyranny: Revolution. And it is an essential option, because the Natural Rights of man are always at risk of contravention by tyrants. At no time in the last century has our Republic faced a greater threat from "enemies, domestic" than right now.
"Our individual salvation," insists Barack Obama, "depends on collective salvation." In other words, BHO's tyranny, et al, must transcend Constitutional authority. And in accordance with his despotic ideals, Obama is now implementing "the fundamental transformation of the United States of America" that he promised his cadre of liberal voters.
It is yet to be seen whether the current trend toward statism will be reversed by the emergence of a great conservative leader, or by revolution, but if you're betting on another Ronald Reagan, I suggest you hedge your bet.
Our Declaration's author, Thomas Jefferson, understood the odds. He wrote, "The natural progress of things is for liberty to yield and government to gain ground," and he concluded, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."
Accordingly, George Washington advised, "We should never despair, our Situation before has been unpromising and has changed for the better, so I trust, it will again. If new difficulties arise, we must only put forth new Exertions and proportion our Efforts to the exigency of the times."
Indeed we must.
Semper Vigilo, Fortis, Paratus et Fidelis!
All in Favor of Bread and Circuses, Vote Aye, I
Reply #24 on:
July 26, 2009, 02:07:36 PM »
The Obsolete New York Model. Where a tax-eating majority votes itself a permanent income
City Journal | July 16, 2009 | Myron Magnet
It’s worth recalling that when the Founding Fathers led the American colonists in revolt against British oppression, they weren’t rebelling against torture on the rack or being chained in galleys or having to let aristocrats deflower their daughters. They were rebelling against taxes. To them, having to pay duties they hadn’t voted for themselves was a tyrannical taking of property—theft—and, in true Lockean fashion, they concluded that since government exists to protect life, liberty, and property, a regime that does the opposite renders itself illegitimate. What would they make, then, of today’s New York City, where 1.2 percent of the taxpayers—40,000 households—pay 50 percent of the income taxes, and half the households pay no income tax at all? If the tax code ensures that those who pay the bulk of the taxes are always a minority of those who vote for the legislature that imposes the taxes, isn’t that taxation without representation? Isn’t it also the tyranny of the majority that the Founders tried to prevent?
A state of affairs so opposed to the Founders’ vision could never have come about all at once. It took shape in emergency spurts, sparked by upheavals like the Civil War, which prompted crisis measures like the first federal income tax (made legal retrospectively in 1913 by the Sixteenth Amendment). For New York, the cataclysmic turning point was the Depression. Gotham was the New Deal metropolis, with New York senator Robert F. Wagner and Gotham mayor Fiorello La Guardia falling over each other to make the city the showcase for President Franklin D. Roosevelt’s big programs, designed (among other aims) to turn urban ethnics—whose normally supportive banks and charities the Depression had crushed along with their jobs—into the foundation of Democratic Party power.
As New York’s governor, FDR had already begun in 1931 to provide the state’s jobless with welfare proper—direct relief in money, food, and clothing—for the first time in over half a century. As president, he made the program national in 1933 through the Federal Emergency Relief Administration, and La Guardia quadrupled Washington’s funds with lavish state and city supplements. After the mayor heard that insolent city workers were worsening the already-painful humiliation of getting aid, he rushed down to a Lower East Side relief station to investigate. When he saw abashed applicants waiting and waiting, while an official in a hat lounged with his feet on a desk, smoking a cigar, La Guardia famously strode over to him, knocked the cigar out of his mouth and the hat off his head, and barked, “Take your hat off when you speak to a citizen!” Later he announced, “That’s another s. of a b. that has no job.” In 1935, the feds instituted another cash relief program, this one for fatherless families: Aid to Dependent Children, which was supporting 700,000 kids nationwide by 1939 and later became the main U.S. welfare scheme. In addition to such cash programs, FDR’s Public Works Administration put New Yorkers to work building the Triborough Bridge, the Lincoln Tunnel, and La Guardia Airport; by 1936, the Works Progress Administration had employed 250,000 Gothamites to construct, under the direction of La Guardia and Parks Commissioner Robert Moses, public swimming pools, beaches, playgrounds, and hospitals.
La Guardia had set about constructing the first welfare city from the moment he entered City Hall. In his 1933 campaign, he had floated the unprecedented idea of government housing, and when he won, the White House offered to fund a New York City Housing Authority if the new mayor would set it up. On a frigid December 3, 1935, the nation’s first-ever public housing project opened on the Lower East Side. “A great constitutional lawyer two years ago told me it would be a cold day when the government builds houses,” said La Guardia at the dedication of the 122-unit complex, proudly highlighting the radicalism of his accomplishment. “Well, he was right that time.” Constitutional or not, eight more projects arose during La Guardia’s three terms in City Hall. In addition, with $315 million in bond financing, the mayor took over the city’s three ailing and deteriorating private subway companies, along with its bus lines, in 1939 and 1940, turning transportation into a government-subsidized public service and transit workers into civil servants. To accompany his publicly funded municipal hospitals, he also set in motion a subsidized health-insurance program, which began operating just before he died in 1947.
Taken together, all these programs not only expanded government unimaginably but also created a comprehensive new rationale for it, very different from the Founding Fathers’ political philosophy. Not content with ensuring the liberty in which individuals are free to pursue their own happiness in their own way, government was now going to hand it to them. “We are trying to make people happy,” La Guardia announced. “We are going to make our city a real heaven,” he promised, taking politics into a realm beyond the mere art of the possible.
A much subtler thinker, Roosevelt—in the spirit of never letting a good crisis go to waste, as a modern Democrat would put it—calculatedly used the Depression as an occasion to remake society in accordance with his own vision of “social justice” and freedom, though his new birth of freedom stood Lincoln’s on its head. “Necessitous men are not free men,” he postulated. The great corporations and the tycoons who controlled them before the New Deal, he said, “had concentrated into their own hands an almost complete control over other people’s property, other people’s money, other people’s labor—other people’s lives. For too many of us, life was no longer free; liberty was no longer real; men could no longer follow the pursuit of happiness. Against economic tyranny such as this, the American citizen could appeal only to the organized power of government.”
But while big government existed to protect the individual from big business, the individual paradoxically faded out in FDR’s worldview, changed in the president’s imagination into a unit in the great social machine. “For it is literally true that the ‘self-supporting’ man or woman has become as extinct as the man of the stone age,” he declared. “Without the help of thousands of others, any one of us would die, naked and starved.” Moreover, the great social machine is better off without the rugged individuals of yore, since in Roosevelt’s conventional (and mistaken) economic theory, the Depression was a crisis of overproduction, with an excess of goods and services forcing down prices and wages. “The day of the great promoter or financial Titan, to whom we granted everything if only he would build, or develop, is over,” FDR pronounced. “Our task now is not discovery, or exploitation, of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand, . . . of distributing wealth and products more equitably.” Progress was something that had already happened; in FDR’s view—before the war, at least—America had reached the end of history.
Once you start talking about government’s equitable distribution of wealth—about giving government the power to define and create “fairness,” as Hayek put it—you have begun to leave democracy behind. And while both FDR and La Guardia were extraordinary visionaries with sincere sympathy for ordinary people, theirs was not a democratic vision. Roosevelt’s patrician paternalism saw the world from an Olympian height, from which individuals, in the shadow of the immense, almost superhuman institutions that concerned him, looked tiny and indistinguishable. The scale of his imagination was much grander than the Founders’ vision of a government powerful enough to protect individuals from the depredations of others but strictly limited and hedged by checks and balances to keep it from becoming an instrument of oppression, as history shows most governments have been.
In the same vein, La Guardia bristled at being called a “politician,” preferring the honorific “municipal officer.” In true Progressive fashion, he dreamed of government by enlightened, public-spirited experts, as opposed to venal (but democratic) Tammany-style pols, and he kept trying to soar above politics, defining himself as a “progressive” rather than a “regular” Republican. He flitted from party to party, winning the mayoralty in 1933 as the Fusion candidate, in 1937 as the Fusion, Republican, Progressive, and American Labor Party candidate, and in 1941 as the Republican candidate endorsed by his best Democratic friend, FDR. “You know I am in the position of an artist or a sculptor,” he explained. “I can see New York as it should be and as it can be if we all work together”—if, in other words, the voters would give him the power to mold their world into the shape he desired for them. Any great leader needs a vision, of course—needs to show people the world as it could be. But it is not surprising that the five-foot-two dynamo’s enemies called him the “midget Mussolini” or that he kept on his desk a figurine of that other dynamo of short stature who tried to impose his gigantic will on the world, Napoleon Bonaparte.
The Founders recognized the danger of a freely elected government’s becoming what Declaration of Independence signer Richard Henry Lee called an “elective despotism.” In their urgency to combat the Depression with all possible weapons, the New Dealers discounted that peril.
As so often happens, the emergency measures didn’t disappear when the emergency ended. But they needed an updated rationale. They got one in August 1943, when, after Gotham’s wartime job opportunities and its rich smorgasbord of welfare benefits had drawn waves of new black migrants into the city, a white cop summoned to settle an unruly dispute shot an unarmed black soldier, and Harlem erupted in riots. Even sober working people joined in the arson and looting, smashing windows and carrying off merchandise “in bundles and baskets and parcels.” Six died; property damage totaled $15 million. Mayor La Guardia’s response was to turn all the machinery of the new welfare city to eradicating the racial inequality that, in his view, had sparked the riots—though a Brooklyn grand jury at that very moment recommended better policing as the solution to that borough’s African-American lawlessness. Roundly condemning the Brooklyn approach, the mayor gave the welfare city a new justification: creating racial justice. For the first time, though, with New Deal money no longer flowing, the cost of welfare put the city budget in deficit. La Guardia’s successors raised taxes by dribs and drabs, a hotel levy here, a sales-tax boost there.
All in Favor of Bread and Circuses, Vote Aye, II
Reply #25 on:
July 26, 2009, 02:08:11 PM »
La Guardia was ahead of his time, but over 20 years later, when John Lindsay took over city hall during President Johnson’s War on Poverty and Nelson Rockefeller’s long, liberal reign as New York’s governor, the nation had caught up. Redressing three centuries of racial wrongs became America’s Number One political crusade. As always, New York marched in the vanguard, with LBJ taking as his chief antipoverty model a Lower East Side far-left community-organizing group called Mobilization for Youth, which emphasized confrontational political activism to change “the system,” poverty’s supposed cause.
Lindsay himself—a “progressive” Republican like La Guardia, though without the genius—adopted a dumbed-down version of Marx’s already-crude idea that ideas and values are merely an automatic reflection of the economic “base.” So he set out to provide poor black New Yorkers with middle-class incomes, middle-class housing in middle-class neighborhoods, and middle-class political control of schooling as a way of making them middle-class citizens with a middle-class outlook. The result of such governmental largesse was exploding welfare dependency, anarchic housing projects, family collapse, and open warfare between activists and teachers whose destructive consequences proved ineradicable. As the welfare rolls shot up under radical social-services chief Mitchell “Come-and-Get-It” Ginsberg, and as businesses and middle-class taxpayers began fleeing the disorder, taxes shot up, too, and New York City imposed its first personal income tax during Lindsay’s first year in office, 1966.
But over the following decades—and despite all the War on Poverty foolishness that turned so many of its supposed beneficiaries into an intergenerational underclass—the Civil Rights Act of 1964, along with a transformation of white attitudes about race, really accomplished the civil rights revolution that the country desired, fully opening American opportunity to African-Americans. Much effort went into denying this accomplishment—from blacks whose identity rested on their sense of grievance, from unionized service providers and clients fearful of losing their incomes, from politicians and advocates staring into the dustbin of history. But with the election of an African-American as president, even many blacks who once resisted the idea are starting to imagine themselves as an equal part of the American nation.
A democracy can’t tax citizens without a rationale, however cockeyed, as much of the War on Poverty’s rationale was. That’s part of the reason for the outrage over the Bush-era congressional earmarks to build a bridge to nowhere or remove tattoos or combat obesity: giving legislators taxpayer money to disburse as they saw fit, with no stated national purpose, pulled the veil off the great taxation machine and revealed parts of it, at least, as a racket—as theft, the Founders would say. Now our polity stands at an inflection point. “New Deal II: The War on Poverty” is over, its mission accomplished, though by different means than it foresaw. What do we do with the government machinery it justified?
A strangely fortunate by-product of the War on Poverty’s focus on minorities was that it largely insulated white America from the most destructive and demoralizing welfare programs and attitudes that retarded progress among many of the black and Hispanic poor. It shunted the New Deal welfare state onto a branch line, while England and Europe hurtled down the welfare state’s main line to much more widespread dependency and idleness, low growth, limited horizons, little innovation, and a grossly bloated public sector, with countless unproductive government drones gobbling up a porcine share of GDP and further constricting liberty through meddling, “fairness”-promoting diktats.
But in New York, with its vast population of the hereditary minority poor, we now have something less like the rest of America and more like the European welfare state: heavily and inequitably taxed; undemocratic, unsustainable, and largely pointless; with government telling us what to eat and where to smoke, using its total control of the school system to accomplish little beyond boosting costs dramatically, subsidizing or dictating the rents on half of the city’s rental apartments, forcing private health-insurance buyers to subsidize the care of the indigent, and prohibiting us from asking whether those who use the services we pay for are here legally. Our public services, even vital ones like the subway, work badly, because they operate less for the convenience of their users than for the sake of their unionized, overpaid employees, now not so much public servants as the public’s masters, through the vast political might they wield over so powerful a government.
On top of which, New York State, judged the “least free” in the nation in a new George Mason University study of personal and economic liberty, is quicker than the other 49 states to wield eminent domain to take away private property and give it to someone else, the absurd extreme of government-forced redistribution. Such unfreedom—along with “swarms of officers to harass our people, and eat out their substance”—would have driven the Founders to arms, but New Yorkers have no idea of how to reform a government that is essentially a one-party elective despotism with no checks and balances, and no democratic levers of change, such as voters’ initiatives and referenda. For us, the clearest solution is to leave, as millions of middle-class individuals and most of our Fortune 500 headquarters have done over the last half-century.
Struggling under the accumulated burden of eight decades of “progressive” government, we New Yorkers can serve as a warning to our fellow Americans as President Obama, following the New Deal playbook, seeks to use the current financial crisis to provide a new rationale and legitimacy for the gargantuan machinery of the federal government. Our economic ills, the president contends, require expanding the welfare state to include the majority of Americans not just in Medicare and Social Security but also in government-subsidized and -controlled health care and higher education—all paid for by an ever smaller percentage of the citizens, in the name of European-style redistributionist “fairness.” Logically, this plan is a non sequitur (in the process of turning, by constant repetition, into a Big Lie), since health care and education have nothing to do with the causes or cure of our present economic woes. But logic aside, consider New York’s government-controlled services and ask if they are worth taking to nationwide scale. Take a good look at the president’s tax plans, too, which will end up with many more Americans paying nothing and many fewer paying most of the bills. Once the tax eaters outnumber the taxpayers and can vote themselves an income, you have arrived at elective despotism.
And despotism is the real issue, much larger than high taxes and bad services provided by public employees whose pensions and lifetime health benefits dwarf those of most taxpayers who struggle to support them. Just look beyond European-style New York to Europe proper. In the name of “fairness,” European governments have criminalized free speech, with France prosecuting Brigitte Bardot, and Switzerland and Italy prosecuting Oriana Fallaci, for anti-Muslim statements, while the British home secretary who charged her husband’s porno movie rentals to the taxpayers has barred Dutch M.P. Geert Wilders and American talk-show host Michael Savage from Britain for fomenting anti-Islamic hatred. The Scandinavian countries have outlawed antihomosexual speech as well.
As Theodore Dalrymple has written in these pages, governments that take charge of life’s important matters—health care, pensions, the education of children—infantilize their citizens, making them so frivolous and torpid that they become unwilling even to defend their country and their way of life. “I have never learned to fight for my freedom,” Mark Steyn quotes one Dutchman saying ruefully about the Islamization of his country. “I was only good at enjoying it.” In this spirit, 15 British sailors surrendered without a shot to an Iranian gunboat in the Persian Gulf two years ago. “From the outset, it was very apparent that fighting back was simply not an option,” said a marine captain among these latter-day representatives of Lord Nelson’s indomitable tars. “Had we chosen to do so, then many of us would not be standing here today.” Such unblushing cowardice makes the Royal Navy, for all its costly weaponry, about as fearsome as the expensively armed Saudi or Egyptian air forces.
More important still, the propounders of the individualist work ethic, from Alexander Hamilton onward, had it right: a free society isn’t one that alleviates the burden of supporting ourselves and our families, but rather one that provides the opportunity to labor in a way that brings to light whatever human excellence may lie within us—a way that perhaps even adds to the sum of human progress. As opposed to FDR’s immense governmental machine throbbing mightily at the end of history, how much grander is Edmund Burke’s vision of society as “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection.” It is a vision in which some can be the Titans Roosevelt rejected—not just the Morgans and the Vanderbilts that New York produced, but also its Edith Whartons and its Herman Melvilles. Most crucially, all can be humans, free citizens with a sense of purpose, not cogs.
Myron Magnet is City Journal’s editor-at-large and was its editor from 1994 through 2006. He is the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass and a recipient of the National Humanities Medal
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #26 on:
August 06, 2009, 12:54:00 PM »
Ultimately the survival and flourishing of the American Creed is up to us:
Reply #27 on:
August 16, 2009, 09:57:55 AM »
Pentagon, governors clash over reserve units
The Defense Department is engaged in a turf war with the nation's governors, who object to plans for greater Pentagon control over Reserve units called up to assist with natural disasters. Unless governors remain in control, "strong potential exists for confusion in mission execution and the dilution of governors' control over situations with which they are more familiar and better capable of handling than a federal military commander," according to the National Governors Association. But the Pentagon responds that reservists already are under federal command during national emergencies such as terrorist attacks, and that the new proposal is simply an extension of that authority. "This provision would in no way impede or undermine or inadvertently reduce the authority that governors exercise under the United States Constitution," says Paul Stockton, the Pentagon's assistant secretary for homeland defense. Google/The Associated Press (8/13)
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #28 on:
August 17, 2009, 11:08:02 AM »
From the DBMAA forum:
In 1774 the colonies established the Continental Congress to coordinate their efforts against British rule. In 1776 the Congress adopted the Declaration of Independence. In 1781, while the war was still on going the C.C. formed the first constitution and the states ratified it; this was the Articles of Confederation. As a confederation it allowed each state to be sovereign and independent, with the states being supreme over the national government. The Articles reflected the fears of having a powerful, distant central government, after all they were fighting to get away from just such a government. The leaders at the time thought that given any power at all the new government would grow to be too strong and individual liberty would again be lost. They understood that individuals would have more of a chance to influence and maintain control over a state government than they would a central government.
After the end of the war it became clear that in their effort to keep the national government from becoming to powerful, they had weakened it to the point where it couldn't act on things of national interest with any effectiveness and they also realized that some states were using their power to the detriment of other member states. The Continental Army had been disbanded after the war and treaties signed but Britain still had outposts in the northwest and a standing army in Canada. Spain still claimed the entire Mississippi river valley and control shipping down the Mississippi to the Gulf and posed a threat to trade; and just as well, the Barbary pirates were seizing American ships and sailors on the high seas. Then on the domestic front was the huge war debt to be paid and problems with trade between the states and other governments. If Congress made a trade deal with another nation the states could ignore it, put tariffs on the goods and so on. Most states held elections every year which led to pandering. Politicans would pass laws to forgive debts, change laws on the whims of a single wealthy complaintant just to ensure they were reelected. In other words there was and excess of democracy.
All of this was of great concern but when Shay's Rebellion happened in 1786/87 it put the fear into them that their nation was about to fall apart. The states were becoming tyrannical and at the same time inciting mob rule. In short the government was too decentralized to ensure either peace or prosperity among the states. The Congress could not raise an army because it could not draft individuals or impose a tax to finance it; Congress could not enforce any treaty or trade agreement and was dependent on the states, who put their own self interests above all others. Things had gotten so bad that Nathaniel Gorham, the president of the C.C., wrote to Prince Henry of Prussia, telling him that there has been a failure of all our free institutions and asked if he would agree to become King of America. The Prince refused.
It was under these conditions that in 1787, just three months after Shay's Rebellion, that Congress convened to revise the Articles. The states picked 74 delegates to send and 55 showed up. Rhode Island didn't send anyone out of fears that they would no longer be able to forgive debts to its farmers. Patrick Henry of Kentucky said, "I think I smelt a rat", when asked why he wouldn't attend. Many felt that this was leading up to a betrayal of the spirit of 76 and that the liberty they fought long and hard for was about to be stolen out from under them.
The first thing the delegates agreed upon was that a new constitution was needed instead of a revised Articles of Confederation, so they started from scratch. They continued to fear creating a distant government with too much power; all the reasons they rebelled against British rule was still very vivid in their hearts and minds and they were not throwing those away. The consensus from the start was to have limited government, some want more some wanted less and there were compromises galore but the over riding factor was on limits that protected individual liberty and preserved states rights. They did not want a national government that wielded all the power but had enough power to be effective. Out of this came federalism and separation of powers and checks and balances. These were meant to constrain and contain the new government, to secure individual liberty and rights. They agreed on the three branches, the legislative, executive, and judiciary. Madison said, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny." To further establish protections for liberty they took away the question of who had sovereignty by giving it to the people. This is what Lincoln was referring to and he did not invent the idea of a government for the people by the people. They also set terms in the House to two years and in the Senate to six to reduce pandering but still keep them answerable to the people and their states. Until the seventeenth amendment was adopted, the Senate seats were appointed by the state's legislators. Term limits were set by elections, if the people kicked you out, the number of terms you served was limited.
Is Obamacare Constitutional?
Reply #29 on:
August 22, 2009, 03:03:06 PM »
Illegal Health Reform
By David B. Rivkin Jr. and Lee A. Casey
Saturday, August 22, 2009
President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?
In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.
Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a "benefit" that some part of the population would not choose to eschew.
The other obvious alternative is to use Congress's power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either.
Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a "tax" to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.
Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous -- and therefore unlikely -- scenario, advocates of universal health coverage must accept that Congress's power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.
The writers are partners in the D.C. office of Baker Hostetler LLP and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.
Holder vs. OK English as official language
Reply #30 on:
August 27, 2009, 03:05:43 PM »
Obama’s Imperial Decree: Target Oklahoma
Posted on 06 August 2009
by Bryce Shonka
Remember the good old days, when one only had to watch out for the Federal Government’s twisted interpretation of the commerce clause to justify tyranny?
Well those days seem to be long gone. The Obama Administration has been employing an old tactic lately – what some might call an imperial threat – and they’re not doing it overseas, either.
STATES UNDER THREAT
The state of Oklahoma is now the target of a direct challenge from US Attorney General Eric Holder, who is using the Civil Rights Act of 1964 as justification to violate Oklahoma’s sovereignty as affirmed by the Tenth Amendment to the US Constitution.
In a letter written to the State Attorney General in April, the Federal government used aggressive language, bringing up the possibility of withholding Federal funds appropriated for Oklahoma. The reason? A proposed amendment to the State Constitution, which requires voter approval, that would make English the official language of the State.
“What it indicates is the Federal Government’s contempt for the states, in this case Oklahoma, and for the idea of federal — as opposed to national — government. AG Holder believes that Oklahoma is an administrative subdivision of the USA, and that it is perfectly right for him to coerce Oklahomans to do his will. Who cares whether he has ever been to Oklahoma, met an Oklahoman, or thought about Oklahoma?” said Kevin Gutzman, an American historian and New York Times bestselling author.
Oklahoma is not alone as a state challenged by central authority in recent months. Recently, federal firearms licensees in Tennessee and Montana received a letter from another Federal agency, the ATF, who had also issued a decree wrought with hubris - claims by the Federal government of their legal supremacy across the land.
DESTROYING LOCAL GOVERNMENT
“Both of these letters, particularly this letter to the Attorney General of Oklahoma, are very officious,” observed Rob Natelson, professor of law at the University of Montana. “It reminds one eerily of the kinds of communications that started to come out from the Emperor to the local cities of the Roman Empire, beginning the course of the ultimate destruction of local government.”
Professor Natelson is a widely-recognized expert on the framing and adoption of the United States Constitution, and on several occasions, he has been the first to uncover key background facts about the Constitution’s meaning. I knew this before our conversation. What I didn’t know, however, was that he’s also been studying Roman Law and history for the past 50 years, and is responsible for several works in that field.
“During the 2nd century AD, the Roman Emperors began increasingly to interfere with local government and they did this with…letters…letters that look something like this,” continued Natelson, indicating the letter from Holder to Oklahoma. “They started out as almost advisory and they got increasingly peremptory. By the end of the 2nd century, there was very little local government left. You had very few people, therefore, willing to participate in local elections; very little patriotic spirit towards one’s own province or city. And this was the harbinger for the ultimate centralization of the Roman Empire.”
He continued with a strong, decisive tone, “Almost everyone who’s studied in that area agrees that the effect was to sap the life out of the empire, so that everything flowed to the center. All that counted was the Emperor and his bureaucrats…and his courtiers. I look at this and I see this letter which gets close to looking like an order from the central government down to a sovereign state legislature, and I say…WOW. This looks like something that Septimius Severus would have sent to the local officials.”
In Columbus, Ohio last weekend, a rally in support of State Sovereignty drew around 7,000 people. Judge Andrew Napolitano addressed the rally and made similar comments indicating the nature of our current point in US history.
“In the long history of the world, very few generations have been granted the role of defending freedom in its maximum hour of danger. This is that moment and you are that generation”
IMPERIALISM AND DECLINE
Are these men ‘crying wolf’?
“Some people might think that’s a far fetched analogy but I can’t emphasize enough how important this development is seen by historians. When people think of the collapse of the Roman Empire they think of the fall of Rome in 476 AD. The conversion of Rome from a relatively free state - almost a Federation - into a totalitarian state, really picked up speed and accelerated during the 2nd century [AD], with this increasing intermeddling by the central authorities in local state government. That’s what it reminded me of,” recalled Natelson.
“[The DOJ] are not violating any law by sending these letters, but there’s a change in tone, there’s a new and disturbing tone in them. At least the ATF letter was addressed to individuals. This one is addressed to a state legislature - really, it’s a bit much. Besides the fact that there’s the tone, there’s the fact that they sent the letters at all. Most of the letters that were sent out by the emperor were called rescripts, and that’s almost what [the letter from Holder] looks like. The one difference is that a rescript was usually a reply to a request for advice. In some ways this is worse than a rescript because this is unsolicited. A better way to compare it would be to an imperial constitutio - an imperial decision or decree.” Natelson added.
His Roman analogy is worth considering, for several reasons. Rome may have ended up a brutal dictatorship, but it began through a series of treaties between regions, and in some ways parallels present day America.
“When you draw comparisons between the U.S. and ancient Rome, you have to be very cautious, though Rome does have lessons to offer us and the history and results of the relentless centralization of the Empire is one of them,” Natelson continued.
THE OTHER WAY AROUND
If there’s a case to be made that the US is headed for the same sort of central plan that sucks the life out of a Republic, it would be difficult to imagine who in the United States could be encouraged by such a trend, outside of DC’s beltway.
“Certainly state legislators in Oklahoma and congressmen from Oklahoma should put the Federal Government on notice that they will support a substantial reduction in the budget for Holder’s portion of the federal bureaucracy so long as he is trying to coerce them in this way.” recommended Gutzman.
Worldwide trends in recent political elections do exhibit signs of a move away from central planner candidates, a trend the United States has been contrary to for nearly a decade, but perhaps the pendulum has reversed itself.
“As the economy grows increasingly complicated, increasingly interdependent and increasingly technological, centralized control (which never worked very well) works less and less, and people are less willing to stand for it. This reflects a visceral gut reaction people have against centralized control, because they know from their own life it makes no sense, though it always takes time for those mega-trends to filter into the political class,” Natelson continued. “Eventually, when a mule gets hit over the head enough times it figures out what’s going on, and eventually the politicians will figure out what’s going on, too.”
People in the US are coming together by the thousands, demanding decentralization and nullification of Federal powers. Never before have the political elites had to contend with a non-partisan political force on such a massive scale. A storm seems to be brewing; a maelstrom of everyday Americans rallying around the document designed to keep the government in fear of the people - instead of the other way around.
Bryce Shonka [send him email] is Media and Grassroots director for the TenthAmendmentCenter
Reply #31 on:
September 01, 2009, 12:11:41 PM »
The Constitution and American Sovereignty
"WOULD WE be far wrong," President Lincoln asked in a special message to Congress in 1861, "if we defined [sovereignty] as a political community without a political superior?" Maybe that’s not exhaustive, but it comes on good authority. And notice that for Lincoln, sovereignty is a political or legal concept. It’s not about power. Lincoln didn’t say that the sovereign is the one with the most troops. He was making a point about rightful authority.
By contrast, sovereignty wasn’t an issue in the ancient world. Cicero notes that the ancient Romans had the same word for "stranger" as for "enemy." In the ancient world, people didn’t interact with foreigners enough to think about their relation to them except insofar as it meant war. Nor was sovereignty an issue in medieval Europe, since the defining character of that period was overlapping authority and a lot of confusion about which authority had primary claims. No one had to think about defining national boundaries. This became an issue only in the modern era, when interaction between different peoples increased.
The first important writer to address sovereignty was Jean Bodin, a French jurist of the late 16th century. In his work, Six Books of the Republic, Bodin set out an understanding of sovereignty whereby the King of France represented an independent political authority rather than owing allegiance to the Holy Roman Emperor or to the Pope. In the course of developing this argument, Bodin also advocated religious toleration and insisted that a monarch can neither seize property except by law nor raise taxes except by the consent of a representative body. He was in favor of free trade, and he insisted on the monarch’s general obligation to respect the law of nature and the law of God. His main practical point was that the government must be strong enough to protect the people’s rights, yet restrained enough not to do more than that. Subsequently, I might add, Bodin wrote a book about witchcraft—which he very much opposed. Witches are people who think they can make an end run around the laws of nature and of God using magical spells, and Bodin saw them as a menace.
It was not until the 17th century that the word "sovereignty" became common. This was also when people first came to think of representative assemblies as legislatures. Indeed, the word "legislature" is itself a 17th century term reflecting the modern emphasis on law as an act of governing will rather than impersonal custom. It is therefore related to the modern notion of government by consent. Significantly, it was also in this same era that professional armies came into being. Before the 17th century, for instance, there was no such thing as standard military uniforms. Uniforms indicate that soldiers have a distinct status and serve distinct governments. They reflect a kind of seriousness about defense.
The 17th century is also the period when people began thinking in a systematic way about what we now call international law or the law of nations—a law governing the relation of sovereign nations. The American Declaration of Independence refers to such a law in its first sentence: "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them . . . ." The Declaration assumes here that nations have rights, just as individuals do.
The Sovereign Constitution
Returning to Lincoln, his understanding was that in an important sense American sovereignty rested in the Constitution. Article 7 of the Constitution declares that it will go into effect when it is ratified by nine states, for those nine states. And once ratified—once the people of those states have entered into the "more perfect Union’’ described in its Preamble—the Constitution is irrevocable. Unlike a treaty, it represents a commitment that cannot be renegotiated. Thus it describes itself unambiguously as "the supreme Law of the Land"—even making a point of adding, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The Constitution provides for treaties, and even specifies that treaties will be "the supreme Law of the Land"; that is, that they will be binding on the states. But from 1787 on, it has been recognized that for a treaty to be valid, it must be consistent with the Constitution—that the Constitution is a higher authority than treaties. And what is it that allows us to judge whether a treaty is consistent with the Constitution? Alexander Hamilton explained this in a pamphlet early on: "A treaty cannot change the frame of the government." And he gave a very logical reason: It is the Constitution that authorizes us to make treaties. If a treaty violates the Constitution, it would be like an agent betraying his principal or authority. And as I said, there has been a consensus on this in the past that few ever questioned.
Let me give you an example of how the issue has arisen. In 1919, the United States participated in a conference to establish the International Labour Organization (ILO). The original plan was that the members of the ILO would vote on labor standards, following which the member nations would automatically adopt those standards. But the American delegation insisted that it couldn’t go along with that, because it would be contrary to the Constitution. Specifically, it would be delegating the treaty-making power to an international body, and thus surrendering America’s sovereignty as derived from the Constitution. Instead, the Americans insisted they would decide upon these standards unilaterally as they were proposed by the ILO. In the 90 years since joining this organization, I think the U.S. has adopted three of them.
Today there is no longer a consensus regarding this principle of non-delegation, and it has become a contentious issue. For instance, two years ago in the D.C. Court of Appeals, the National Resources Defense Council (NRDC), an environmental group, sued the Environmental Protection Agency (EPA), claiming that it should update its standards for a chemical that is thought to be depleting the ozone layer. There is a treaty setting this standard, and the EPA was in conformity with the treaty. But the NRDC pointed out that Congress had instructed the EPA to conform with the Montreal Protocol and its subsequent elaborations. In other words, various international conferences had called for stricter emission standards for this chemical, and Congress had told the EPA to accept these new standards as a matter of course. The response to this by the D.C. Court of Appeals was to say, in effect, that it couldn’t believe Congress had meant to do that, since Congress cannot delegate its constitutional power and responsibility to legislate for the American people to an international body. This decision wasn’t appealed, so we don’t yet have a Supreme Court comment on the issue.
Reply #32 on:
September 01, 2009, 12:14:38 PM »
The delegation of judicial power is another open question today. There’s no doubt that the U.S. can agree to arbitrations of disputes with foreign countries, as we did as early as the 1790s with the Jay Treaty. But it’s another thing altogether to say that the rights of American citizens in the U.S. can be determined by foreign courts. This would seem to be a delegation of the judicial power, which Article 3 of the Constitution says "shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This became an issue last year in the case of Medellin v. Texas, which considered an International Court of Justice ruling that Texas could not execute a convicted murderer, because he had not been given the chance to consult the Mexican consulate before his trial, as he had the right to do under an international treaty. The Supreme Court, after much hand-wringing, concluded that it didn’t think the Senate had intended to give the International Court of Justice the power to decide these questions of American law as applied by American courts. I would go further and say that no matter what the Senate intended, this is not a power which can be delegated under the Constitution. But it is no longer clear that a majority on the Supreme Court would agree.
Or consider the Spanish judges who want to arrest American politicians if they venture into Europe, in order to try them for war crimes. This is preposterous. It is akin to piracy. And not only has our government not protested this nonsense, but it has contributed to building up an international atmosphere in which this sort of thing seems plausible—an atmosphere where the old idea of a jury of one’s peers and the idea of Americans having rights under the Constitution give way to the notion of some hazy international standard of conduct that everyone in the world can somehow agree upon and then enforce on strangers.
The Loss of Sovereignty
It is important to think about these issues regarding sovereignty today, because it is possible to lose sovereignty rather quickly. Consider the European Union. The process that led to what we see today in the EU began when six countries in 1957 signed a treaty agreeing that they would cooperate on certain economic matters. They established a court in Luxembourg—the European Court of Justice—which was to interpret disputes about the treaty. To make its interpretations authoritative, the Court decreed in the early 1960s that if the treaty came into conflict with previous acts of national parliaments, the treaty would take precedence. Shortly thereafter it declared that the treaty would also take precedence over subsequent statutes. And in the 1970s it said that even in case of conflicts between the treaty and national constitutions, the treaty would take precedence. Of course, judges can say whatever they want. What is more remarkable is that all the nations in the EU have more or less grudgingly accepted this idea that a treaty is superior to their constitutions, so that today whatever regulations are cranked out by the European Commission—which is, not to put too fine a point on it, a bureaucracy—supersede both parliamentary statutes and national constitutions. And when there was eventually a lot of clamor about protection of basic rights, the court in Luxembourg proclaimed that it would synthesize all the different rights in all the different countries and take care of that as well.
So on the one hand the European Union has constitutional sovereignty, but on the other it doesn’t have a constitution. When its bureaucrats recently attempted to write a constitution and get it adopted, a number of countries voted it down in referendums. Apart from lacking a constitution, the EU doesn’t have an army or a police force or any means of exercising common control of its borders. In effect, it claims political superiority over member states but declines to be responsible for their defense. Indeed, I think inherent in this whole enterprise of transcending nation-states through the use of international institutions is the idea that defense is not so important.
All of this has happened in Europe in a very short period, and is the reason we should be concerned about the loss in our own country of a consensus regarding constitutional sovereignty. Think of the Kyoto Protocol on global warming, which many of our leading politicians now say we should have ratified. Doing so would have delegated the authority over huge areas of important public policy to international authorities. It would have been a clear delegation of the treaty-making power. Nevertheless, the Obama administration is aiming to negotiate a new treaty along those lines.
Of even more urgent concern is the increasing sense that human rights law transcends the laws of particular countries, even those pertaining to national defense. Of course, the idea that there should be standards that all countries respect when engaged in armed conflict is fair enough. But who is going to set the standards? And who is going to enforce them—especially against terrorists who refuse to act like uniformed professional soldiers? What we once called the "law of war" is now commonly referred to as "international humanitarian law." Many today say that we need to follow this law as it is defined by the International Red Cross. But who makes up this organization in Geneva, Switzerland, and what gives them the authority to supersede national statutes and constitutions? Currently the International Red Cross thinks it is a violation of humanitarian standards for the U.S. to hold prisoners in Guantanamo Bay—not on the basis of any claim that these prisoners are mistreated, but based on the argument that they cannot be held indefinitely and should be put on trial in ordinary criminal courts. Even the Obama administration is not yet willing to conform to this particular standard of so-called international law, believing that holding these prisoners is vital to national defense and that the right to self- defense is morally compelling.
* * *
Where does this trend away from the sovereignty of national constitutions lead? I do not think the danger is a world tyranny. I think that idea is fantastical. Rather what it will lead to, I think, is an undermining of the idea that national governments can protect people, with the result that people will start looking for defense elsewhere. We saw this in an extreme way in Iraq when it collapsed into chaos before the surge, and people looked for protection to various ethnic or sectarian militias. A similar phenomenon can be seen today in Europe with the formation of various separatist movements. We’re even hearing loud claims for Scottish independence. And it’s not surprising, because to the extent that Britain has surrendered its sovereignty, Britain doesn’t count for as much as it used to. So why not have your own Scotland? Why not have your own Wales? Why not have your own Catalonia in Spain? And of course the greatest example of this devolution in Europe is the movement toward Muslim separatism. While this is certainly driven to a large extent by trends in Islam, it also reflects the fact that it doesn’t mean as much to be British or to be French any more. These governments are cheerfully giving away their authority to the EU. So why should immigrants or children of immigrants take them seriously?
At the end of The Federalist Papers, Alexander Hamilton writes: "A nation, without a national government, is, in my view, an awful spectacle." His point was that if you do not have a national government, you can’t expect to remain a nation. If we are really open to the idea of allowing more and more of our policy to be made for us at international gatherings, the U.S. government not only has less capacity, it has less moral authority. And if it has less moral authority, it has more difficulty saying to immigrants and the children of immigrants that we’re all Americans. What is left, really, to being an American if we are all simply part of some abstract humanity? People who expect to retain the benefits of sovereignty—benefits like defense and protection of rights—without constitutional discipline, or without retaining responsibility for their own legal system, are really putting all their faith in words or in the idea that as long as we say nice things about humanity, everyone will feel better and we’ll all be safe. You could even say they are hanging a lot on incantations or on some kind of witchcraft. And as I mentioned earlier, the first theorist to write about sovereignty understood witchcraft as a fundamental threat to lawful authority and so finally to liberty and property and all the other rights of individuals.
Aut vincere, aut mori. Sic itur ad astra.
Holder's hidden agenda
Reply #33 on:
September 01, 2009, 12:15:39 PM »
Third post of the morning
August 28, 2009, 4:00 a.m.
Eric Holder’s Hidden Agenda
The investigation isn’t about torture, but about transnationalism.
By Andrew C. McCarthy
‘This is an administration that is determined to conduct itself by the rule of law. And to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it.”
It was springtime in Berlin and Eric Holder, a well-known “rule of law” devotee, was speaking to the German press. He’d been asked if his Justice Department would cooperate with efforts by foreign or international tribunals to prosecute U.S. government officials who carried out the Bush administration’s post-9/11 counterterrorism policies. The attorney general assured listeners that he was certainly open to being helpful. “Obviously,” he said, “we would look at any request that would come from a court in any country and see how and whether we should comply with it.”
As the Associated Press reported at the time, Holder was “pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials.” He skirted the question in a way Americans ought to find alarming. The attorney general indicated that he was speaking only about “evidentiary requests.” Translation: The Obama administration will not make arrests and hand current or former American government officials over for foreign trials, but if the Europeans or U.N. functionaries (at the nudging of, say, the Organization of the Islamic Conference) want Justice’s help gathering evidence in order to build triable cases — count us in.
Hue and cry followed Holder’s decision this week to have a prosecutor investigate CIA interrogators and contractors. The probe is a nakedly political, banana republic-style criminalizing of policy differences and political rivalry. The abuse allegations said to have stunned the attorney general into acting are outlined in a stale CIA inspector general’s report. Though only released this week — a disclosure timed to divert attention from reports that showed the CIA’s efforts yielded life-saving intelligence — the IG report is actually five years old. Its allegations not only have been long known to the leaders of both parties in Congress, they were thoroughly investigated by professional prosecutors — not political appointees. Those prosecutors decided not to file charges, except in one case that ended in an acquittal. As I outline here, the abuse in question falls woefully short of torture crimes under federal law.
Americans are scratching their heads: Why would Holder retrace this well-worn ground when intimidating our intelligence-gatherers so obviously damages national security? The political fallout, too, is palpable. Leon Panetta, the outraged CIA director, is reportedly pondering resignation. President Obama, laying low in the tall grass on his Martha’s Vineyard vacation, is having staffers try to put distance between himself and his attorney general. It is unlikely that many will be fooled: Both Obama and Holder promised their antiwar base just this sort of “reckoning” during the 2008 campaign. But the question remains, Why is Holder (or, rather, why are Holder and the White House) instigating this controversy?
I believe the explanation lies in the Obama administration’s fondness for transnationalism, a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests.
Recall that the president chose to install former Yale Law School dean Harold Koh as his State Department’s legal adviser. Koh is the country’s leading proponent of transnationalism. He is now a major player in the administration’s deliberations over international law and cooperation. Naturally, membership in the International Criminal Court, which the United States has resisted joining, is high on Koh’s agenda. The ICC claims worldwide jurisdiction, even over nations that do not ratify its enabling treaty, notwithstanding that sovereign consent to jurisdiction is a bedrock principle of international law.
As a result, there have always been serious concerns that the ICC could investigate and try to indict American political, military, and intelligence officials for actions taken in defense of our country. Here it’s crucial to bear in mind that the United States (or at least the pre-Obama United States) has not seen eye-to-eye with Europe on significant national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as “proportional” use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT’s placing of “cruel, inhuman, and degrading treatment” on a par with torture. By contrast, Europe generally accepts the UNCAT in toto.
#pageAs long as we haven’t ratified a couple of bad human-rights treaties, why should we care that Europe considers them binding? Because of the monstrosity known as “customary international law,” of which Koh is a major proponent. This theory holds that once new legal principles gain broad acceptance among nations and international organizations, they somehow transmogrify into binding law, even for nations that haven’t agreed to them. That is, the judgment of the “international community” (meaning, the judgment of left-wing academics and human-rights activists who hold sway at the U.N. and the European Union) supersedes the standards our citizens have adopted democratically. It is standard fare among transnational progressives to claim that Protocol I is now binding on the United States and that what they define as cruel, inhuman, and degrading treatment is “tantamount to torture.”
And the transnational Left has still another treat in store: its notion of “universal jurisdiction.” This theory holds that individual nations have the power to prosecute actions that occur in other countries, even when they have no impact on the prosecuting nation. The idea is that some offenses — such as torture and war crimes — so offend the purported consensus of humanity (i.e., so offend left-wing sensibilities) that they may be prosecuted by any country that cares to take the initiative. In fact, many countries (the United States included) open their justice systems to civil suits against government officials — again, even if the country where the suit is filed has nothing to do with the alleged offenses.
So we come back to Holder in Berlin. Two months before the attorney general’s visit, the U.N.’s “special rapporteur on torture” told German television that the Obama administration had “a clear obligation” under the UNCAT to file torture charges against former president George W. Bush and former defense secretary Donald Rumsfeld. The rapporteur was relying on documents produced because of American investigations — including a nakedly partisan report by the Democrat-controlled Senate Armed Services Committee.
Meanwhile, as I detailed here in March, Spain’s universal-justice crusader Baltasar Garzón is pursuing his own torture case against Bush administration lawyers who weighed in on interrogation policy. Garzón is the Spanish investigating magistrate who, with the help of a terrorist turned human-rights lawyer, had Chilean strongman Augusto Pinochet arrested in England for crimes against humanity. The same terrorist-lawyer, Gonzalo Boye, is helping Garzón on the Bush case. The Brits, by the way, eventually decided not to send Pinochet to Spain, but not before the law lords ruled that they could, a decision enthusiastically hailed at the time by U.N. High Commissioner on Human Rights Mary Robinson, the former president of Ireland. That would be the same Mary Robinson of Durban infamy — the one President Obama just honored with the Medal of Freedom.
And then there is the Center for Constitutional Rights, a Marxist organization that for years has coordinated legal representation for terrorists detained at Guantanamo Bay. The CCR has been attempting to convince Germany, France, Spain, and other countries to file war-crime indictments against former Bush administration officials, including President Bush, Vice President Cheney, and Secretary Rumsfeld. In representing America’s enemies, CCR has collaborated with many private lawyers, who also volunteered their services — several of whom are now working in the Obama Justice Department. Indeed, Holder’s former firm boasts that it still represents 16 Gitmo detainees (the number was previously higher). And, for help shaping detainee policy, Holder recently hired Jennifer Daskal for DOJ’s National Security Division — a lawyer from Human Rights Watch with no prior prosecutorial experience, whose main qualification seems to be the startling advocacy she has done for enemy combatants.
Reply #34 on:
September 01, 2009, 12:17:25 PM »
fourth post of the morning:
Put it all together and it’s really not that hard to figure out what is going on here.
Transnationalists from outside and, now, inside our government have been ardent supporters of prosecutions against American officials who designed and carried out the Bush counterterrorism policies that kept this country safe after 9/11. The U.N.’s top torture monitor is demanding legal action, almost certainly as a prelude to calling for action by an international tribunal — such as the ICC — if the Justice Department fails to indict. Meantime, law-enforcement authorities in Spain and elsewhere are weighing charges against the same U.S. officials, spurred on by the CCR and human-rights groups that now have friends in high American places. In foreign and international courts, the terrorist-friendly legal standards preferred by Europe and the U.N. would make convictions easier to obtain and civil suits easier to win.
Obama and Holder were principal advocates for a “reckoning” against Bush officials during the 2008 campaign. They realize, though, that their administration would be mortally wounded if Justice were actually to file formal charges — this week’s announcement of an investigation against the CIA provoked howls, but that’s nothing compared to the public reaction indictments would cause. Nevertheless, Obama and Holder are under intense pressure from the hard Left, to which they made reckless promises, and from the international community they embrace.
The way out of this dilemma is clear. Though it won’t file indictments against the CIA agents and Bush officials it is probing, the Justice Department will continue conducting investigations and releasing reports containing new disclosures of information. The churn of new disclosures will be used by lawyers for the detainees to continue pressing the U.N. and the Europeans to file charges. The European nations and/or international tribunals will make formal requests to the Obama administration to have the Justice Department assist them in securing evidence. Holder will piously announce that the “rule of law” requires him to cooperate with these “lawful requests” from “appropriately created courts.” Finally, the international and/or foreign courts will file criminal charges against American officials.
Foreign charges would result in the issuance of international arrest warrants. They won’t be executed in the United States — even this administration is probably not brazen enough to try that. But the warrants will go out to police agencies all over the world. If the indicted American officials want to travel outside the U.S., they will need to worry about the possibility of arrest, detention, and transfer to third countries for prosecution. Have a look at this 2007 interview of CCR president Michael Ratner. See how he brags that his European gambit is “making the world smaller” for Rumsfeld — creating a hostile legal climate in which a former U.S. defense secretary may have to avoid, for instance, attending conferences in NATO countries.
The Left will get its reckoning. Obama and Holder will be able to take credit with their supporters for making it happen. But because the administration’s allies in the antiwar bar and the international Left will do the dirty work of getting charges filed, the American media will help Obama avoid domestic political accountability. Meanwhile, Americans who sought to protect our nation from barbarians will be harassed and framed as war criminals. And protecting the United States will have become an actionable violation of international law.
I’m betting that’s the plan.
Chance to repeal McCain-Feingold
Reply #35 on:
September 07, 2009, 07:43:26 PM »
By THEODORE B. OLSON
Public discussion about the character and fitness for office of presidential candidates is at the core of the First Amendment's command that "Congress shall make no law . . . abridging the Freedom of Speech." Yet Congress, in its zeal to impose onerous campaign-finance restrictions, has made political speech a felony for one class of speakers. Corporations and unions can face up to five years in prison for broadcasting candidate-related advocacy during federal elections.
Is outlawing political speech based on the identity of the speaker compatible with the First Amendment? Tomorrow, the Supreme Court will hear arguments to determine the answer to this question.
The case—Citizens United v. Federal Election Commission—involves a 90-minute documentary produced by Citizens United, a small nonprofit advocacy corporation. "Hillary: The Movie" examines the record, policies and character of the former New York senator, now Secretary of State, Hillary Rodham Clinton. The documentary was set to be broadcast during Mrs. Clinton's presidential primary campaign. But the broadcast was banned when the Federal Election Commission declared that the broadcast would violate the 2002 McCain-Feingold campaign finance law.
The government defends this restriction by saying that corporations and unions are uniquely capable of amassing great wealth and must therefore be prevented from overwhelming the voices of others during an election. Relying on a 1990 Supreme Court decision (Austin v. Michigan State Chamber of Commerce), the government characterizes this threat as a "type of corruption" on the peculiar theory that such expenditures do not "reflect actual public support for the political ideas espoused by corporations." Therefore, the government reasons, corporate expenditures "distort" the political process and must be banned.
In crafting McCain-Feingold, Congress acted without proof that such expenditures have any distorting effect on elections. And it responded to a nonproblem with a sledgehammer rather than a scalpel. The current ban on candidate-related speech is not limited to big corporations or powerful unions. It prohibits election advocacy by all unions and all corporations, regardless of size. It even criminalizes speech by nonprofit advocacy corporations such as Citizens United and the ACLU, which cannot conceivably distort or corrupt the political process.
The government claims the authority to suppress corporate and union speech not only in broadcast formats but also in books, pamphlets and yard signs. Put simply, the government's theory is that because wealthy corporations and unions might speak too much during elections, all of them must be silenced.
While the law prohibits even the smallest nonprofit groups from engaging in election advocacy, it exempts wealthy individuals, and it does not restrict the many advantages of incumbency for sitting members of Congress. A limitless loophole is also granted to the media. Thus the corporations that own NBC and ABC (GE and Disney, respectively), and corporations like The New York Times (or News Corp., owner of this newspaper), can express whatever views they want during campaigns.
Loopholes aside, the government's argument that speech may be outlawed because it does not reflect "public support for the ideas expressed" is absurd. It is the very antithesis of free speech.
Hard-charging campaign rhetoric is something that the First Amendment's authors had experienced firsthand. In making the choice between government-approved, polite discourse and boisterous debate, the Founders chose freedom. They did not say Congress could enact finely reticulated restrictions on speech. They said plainly that there could be "no law" abridging the freedom of speech.
The idea that corporate and union speech is somehow inherently corrupting is nonsense. Most corporations are small businesses, and they have every right to speak out when a candidate threatens the welfare of their employees or shareholders.
Time after time the Supreme Court has recognized that corporations enjoy full First Amendment protections. One of the most revered First Amendment precedents is New York Times v. Sullivan (1964), which afforded publishers important constitutional safeguards in libel cases. Any decision that determines that corporations have less protection than individuals under the First Amendment would threaten the very institutions we depend upon to keep us informed. This may be why Citizens United is supported by such diverse allies as the ACLU, the U.S. Chamber of Commerce, the AFL-CIO, the National Rifle Association and the Reporters Committee for Freedom of the Press.
Persons of modest means often band together to speak through ideological corporations. That speech may not be silenced because of speculation that a few large entities might speak too loudly, or because some corporations may earn large profits. The First Amendment does not permit the government to handicap speakers based on their wealth, or ration speech in order somehow to equalize participation in public debate.
Tomorrow's case is not about Citizens United. It is about the rights of all persons—individuals, associations, corporations and unions—to speak freely. And it is about our right to hear those voices and to judge for ourselves who has the soundest message.
Mr. Olson, an attorney at Gibson, Dunn & Crutcher, will deliver the oral argument on behalf of Citizens United before the Supreme Court tomorrow.
Second Amendment Sources
Reply #36 on:
September 15, 2009, 06:40:39 AM »
Reply #37 on:
September 15, 2009, 09:55:08 AM »
By ANDREW P. NAPOLITANO
Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"
Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress's powers only to those granted in the Constitution.
One of those powers—the power "to regulate" interstate commerce—is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.
Unfortunately, a notoriously tendentious New Deal-era Supreme Court decision has given Congress a green light to use the Commerce Clause to regulate noncommercial, and even purely local, private behavior. In Wickard v. Filburn (1942), the Supreme Court held that a farmer who grew wheat just for the consumption of his own family violated federal agricultural guidelines enacted pursuant to the Commerce Clause. Though the wheat did not move across state lines—indeed, it never left his farm—the Court held that if other similarly situated farmers were permitted to do the same it, might have an aggregate effect on interstate commerce.
James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison's understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept "regular."
The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.
Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.
The same Congress that wants to tell family farmers what to grow in their backyards has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.
That's right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce.
What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution—they are evading it.
Mr. Napolitano, who served on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "Dred Scott's Revenge: A Legal History of Race and Freedom in America" (Nelson, 2009).
Cabin it Within Principled Constitutional Tradition
Reply #38 on:
September 16, 2009, 05:08:12 PM »
September 16, 2009
The Originalist Perspective
by David F. Forte
An excerpt from The Heritage Guide to the Constitution
Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution--the supreme law of the land--as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a "living document" with no fixed meaning, subject to changing interpretations according to the spirit of the times.
In 1985, Attorney General Edwin Meese III delivered a series of speeches challenging the then-dominant view of constitutional jurisprudence and calling for judges to embrace a "jurisprudence of original intention." There ensued a vigorous debate in the academy, as well as in the popular press, and in Congress itself over the prospect of an "originalist" interpretation of the Constitution. Some critics found the idea too vague to be pinned down; others believed that it was impossible to find the original intent that lay behind the text of the Constitution. Some rejected originalism in principle, as undemocratic (though it is clear that the Constitution was built upon republican rather than democratic principles), unfairly binding the present to the choices of the past.
As is often the case, the debate was not completely black and white. Some nonoriginalists do not think that the Framers intended anything but the text of the Constitution to be authoritative, and they hold that straying beyond the text to the intentions of various Framers is not an appropriate method of interpretation. In that, one strain of originalism agrees. On the other hand, many prominent nonoriginalists think that it is not the text of the Constitution per se that ought to be controlling but rather the principles behind the text that can be brought to bear on contemporary issues in an evolving manner.
Originalism, in its various and sometimes conflicting versions, is today the dominant theory of constitutional interpretation. On the one hand, as complex as an originalist jurisprudence may be, the attempt to build a coherent nonoriginalist justification of Supreme Court decisions (excepting the desideratum of following stare decisis, even if the legal principle had been wrongly begun) seems to have failed. At the same time, those espousing originalism have profited from the criticism of nonoriginalists, and the originalist enterprise has become more nuanced and self-critical as research into the Founding period continues to flourish. Indeed, it is fair to say that this generation of scholars knows more about what went into the Constitution than any other since the time of the Founding. To paraphrase Thomas Jefferson, in a significant sense "we are all originalists" now.
This is true of both "liberal" and "conservative" judges. For example, in United States Term Limits, Inc. v. Thornton (1995), Justices John Paul Stevens and Clarence Thomas engaged in a debate over whether the Framers intended the Qualifications Clauses (Article 1, Section 2, Clause 2 and Article I, Section 3, Clause 3) to be the upper limit of what could be required of a person running for Congress. In Wallace v. Jaffree (1985), Justice William H. Rehnquist expounded on the original understanding of the Establishment Clause (Amendment I), which Justice David Souter sought to rebut in Lee v. Weisman (1992). Even among avowed originalists, fruitful debate takes place. In Mclntyre v. Ohio Elections Commission (1995), Justices Thomas and Antonin Scalia disputed whether the anonymous pamphleteering of the Founding generation was evidence that the free speech guarantee of the First Amendment was meant to protect such a practice.
Originalism is championed for a number of fundamental reasons. First, it comports with the nature of a constitution, which binds and limits any one generation from ruling according to the passion of the times. The Framers of the Constitution of 1787 knew what they were about, forming a frame of government for "ourselves and our Posterity." They did not understand "We the people" to be merely an assemblage of individuals at any one point in time but a "people" as an association, indeed a number of overlapping associations, over the course of many generations, including our own. In the end, the Constitution of 1787 is as much a constitution for us as it was for the Founding generation.
Second, originalism supports legitimate popular government that is accountable. The Framers believed that a form of government accountable to the people, leaving them fundamentally in charge of their own destinies, best protected human liberty. If liberty is a fundamental aspect of human nature, then the Constitution of 1787 should be defended as a successful champion of human freedom. Originalism sits in frank gratitude for the political, economic, and spiritual prosperity midwifed by the Constitution and the trust the Constitution places in the people to correct their own errors.
Third, originalism accords with the constitutional purpose of limiting government. It understands the several parts of the federal government to be creatures of the Constitution, and to have no legitimate existence outside of the Constitution. The authority of these various entities extends no further than what was devolved upon them by the Constitution."
n all free States the Constitution is fixd," Samuel Adams wrote, "& as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation."
Fourth, it follows that originalism limits the judiciary. It prevents the Supreme Court from asserting its will over the careful mix of institutional arrangements that are charged with making policy, each accountable in various ways to the people. Chief Justice John Marshall, overtly deferring to the intention of the Framers, insisted that "that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature." In words that judges and academics might well contemplate today, Marshall said,
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if theywere to be used as the instruments, and the knowing instruments, for violating what they swear to support! (Marbury v. Madison)
Fifth, supported by recent research, originalism comports with the understanding of what our Constitution was to be by the people who formed and ratified that document. It affirms that the Constitution is a coherent and interrelated document, with subtle balances incorporated throughout. Reflecting the Founders understanding of the self-motivated impulses of human nature, the Constitution erected devices that work to frustrate those impulses while leaving open channels for effective and mutually supporting collaboration. It is, in short, a remarkable historical achievement, and unbalancing part of it could dismantle the sophisticated devices it erected to protect the peoples liberty.
Sixth, originalism, properly pursued, is not result-oriented, whereas much nonoriginalist writing is patently so. If evidence demonstrates that the Framers understood the commerce power, for example, to be broader than we might wish, then the originalist ethically must accept the conclusion. If evidence shows that the commerce power was to be more limited than it is permitted to be today, then the originalist can legitimately criticize governmental institutions for neglecting their constitutional duty. In either case, the originalist is called to be humble in the face of facts. The concept of the Constitution of 1787 as a good first draft in need of constant revision and updating--encapsulated in vague phrases such as the "living Constitution"--merely turns the Constitution into an unwritten charter to be developed by the contemporary values of sitting judges.
Discerning the Founders original understanding is not a simple task. There are the problems of the availability of evidence; the reliability of the data; the relative weight of authority to be given to different events, personalities, and organizations of the era; the relevance of subsequent history; and the conceptual apparatus needed to interpret the data. Originalists differ among themselves on all these points and sometimes come to widely divergent conclusions. Nevertheless, the values underlying originalism do mean that the quest, as best as we can accomplish it, is a moral imperative.
How does one go about ascertaining the original meaning of the Constitution? All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its legal effect, originalist researchers variously look to the following:
The evident meaning of the words.
The meaning according to the lexicon of the times.
The meaning in context with other sections of the Constitution.
The meaning according to the words by the Framer suggesting the language.
The elucidation of the meaning by debate within the Constitutional Convention. The historical provenance of the words, particularly their legal history.
The words in the context of the contemporaneous social, economic, and political events.
The words in the context of the revolutionary struggle.
The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
Historical, religious, and philosophical authority put forward by the Framers.
The commentary in the ratification debates.
The commentary by contemporaneous interpreters, such as Publius in The Federalist.
The subsequent historical practice by the Founding generation to exemplify the under stood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
Early judicial interpretations.
Evidence of long-standing traditions that demonstrate the peoples understanding of the words.
As passed down by William Blackstone and later summarized by Joseph Story, similar interpretive principles guided the Framing generation itself. It is the legal effect of the words in the text that matters, and its meaning is to be determined by well-known and refined rules of interpretation supplemented, where helpful, by the understanding of those who drafted the text and the legal culture within which they operated. As Chief Justice Marshall put it,
To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; -- is to repeat what has been already said more at large, and is all that can be necessary. (Ogden v. Sounders, Marshall, C. J., dissenting, 1827)
Marshall's dialectical manner of parsing a text, seeking its place in the coherent context of the document, buttressed by the understanding of those who drafted it and the generally applicable legal principles of the time are exemplified by his classic opinions in Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Barron v. Baltimore (1833). Both Marshalls ideological allies and enemies, such as Alexander Hamilton and Thomas Jefferson, utilized the same method of understanding.
Originalism does not remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law. Without that, we are destined, as Aristotle warned long ago, to fall into the "rule of men."
David F. Forte is Professor of Law at Cleveland State University and Senior Visiting Fellow at the Center on Religion and the Constitution at the Witherspoon Institute. He is Senior Editor of The Heritage Guide to the Constitution, a clause-by-clause analysis of the Constitution of the United States, from which this selection is taken.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #39 on:
September 16, 2009, 08:53:37 PM »
According to Webster's 1828 dictionary, "regulate" means "[t]o put in good order; as, to regulate the disordered state of a nation or its finances."
"Militia" means "[t]he body of soldiers in a state enrolled for discipline, but not engaged in actual service except for emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country aer the able bodied men organized into companies, regiments, and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations."
At the time the articles of confederation and the constitution were adopted, it was universally accepted that a full time military was extremely dangerous to liberty. They referred to a full time military as a "standing army" or a "regular army."
The phrase "well regulated militia" appears in Article VI of the Articles of Confederation. According to that Article, "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition, and camp equipage."
The Anti-federalists opposed adopting the constitution because they feared it gave the federal government the ability to destroy the militia and create a standing army.
Patrick Henry put this pretty well: "My great objection to [the constitution] is, that it does not leave us the means of defending our rights; or, of waging war against tyrants: It is urged by some Gentlemen, that this new plan will bring us an acquisition of strength, an army, and the militia of the States: This is an idea extremely ridiculous: Gentlemen cannot be in earnest. This acquisition will trample on your fallen liberty ... Have we the means of resisting disciplined armies, when our only defence, the militia is put into the hands of Congress? ... The Honorable Gentlemen who presides, told us, that to prevent abuses in our Government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only sufficient to assemble the people. Your arms wherewith you could defend yourselves are gone ... Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in America. A standing army we shall have also, to execute the execrable commands of tyranny."
Pragmatism, Social Darwinism, Progressivism, and the Living Law
Reply #40 on:
September 18, 2009, 12:21:41 PM »
The Undoing of American Constitutionalism
How a political revolution begun more than a century ago led to Sonia Sotomayor.
By Richard M. Reinsch
Those who were desperately confused, if not enraged, by candidate Barack Obama’s contention that the ideal federal judge should fashion his opinion in empathy with the more downtrodden and oppressed party in a case should consult Bradley Watson’s Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence to understand how the man who has become president could assert the primacy of personal opinion over law. Watson’s book daringly asks what social Darwinism and pragmatism have to do with the progressivist evolution in American politics and jurisprudence during the 20th and 21st centuries. Together they were, Watson argues, akin to an intellectual tsunami that shaped, developed, and still informs, albeit in evolved modalities, the dominant understanding of the American constitutional order (or lack thereof) held by the judicial, academic, and political classes. Strange as it might seem, Watson convincingly shows how these philosophical schools flowed into the main currents of American political and judicial thinking.
The social-Darwinist ingredient in progressive jurisprudence is the notion of the state as an organic principle, informed by the general will of society and by the particular facts, circumstances, and history of a people. Subject to no fixed limits, eschewing belief in objective justice, the state follows a path of incessant growth and flexibility, limited only by the ever-changing needs of society. As dictated by the laws of progress and evolution, the state moves society along an inevitable ascent. By application of “scientific” expertise and rationalizing administration, government directs this growth. Expressly left behind is Madisonian constitutionalism and its notions of natural rights, limited government, the rule of law, prevention of faction, and vigilance against the possibility of overly centralized and unaccountable government.
Watson marshals the speeches and writings of Theodore Roosevelt and Woodrow Wilson, and the jurisprudence of Justice Oliver Wendell Holmes, among others, as evidence for his claim of the pervasive influence of social Darwinism in the intellectual cocktail that is progressivism. As Wilson demonstrates, the progressives sought to move the energy of government from the democratic branches to the bureaucracy. Insulated from politics and popular opinion, federal bureaucrats would engage in the scientific administration of government — the overriding ethos of progressivism. The expert and, in time, the judge would supply regulations and orders to fill the multiplying and unruly (i.e., unregulated) gaps of modern industrialized society. Thus, the real purpose of politics under progressivism informed by social Darwinism is not justice, or the preservation of personal and economic liberty — those worthless dregs of past history — but the infusion into federal and state governments of the substantive powers needed to achieve the perfection of government administration.
There was, however, that second element informing progressive thought. Almost seamlessly interwoven with the evolutionary ideal of social-Darwinian ideology, pragmatism equally challenged the fixed understanding of America’s constitutional order. William James — the pragmatist par excellence — brilliantly summarized this school of thought with his statement that ideas “become true just in so far as they help us to get into a satisfactory relation with other parts of our experience.” More succinctly, “The reason why we call things true is the reason that they are true.” Virtually synonymous with the idea that state and society are to be subjected to ongoing experimentalism, pragmatism, like social Darwinism, embraced the idea of ceaseless adaptation and change. It presented the state as the entity most capable of selecting the optimal arrangements for meeting the challenges of new social, political, economic, and technological circumstances. Devastatingly absent was any consideration of the ends or purposes of democratic deliberation. For the pragmatist, the Constitution and its express limits on democratic energy must be negated lest necessary and positive change be wrongly arrested.
For the pragmatist, the importance of democratic thought and choice is not in the considerations of justice or law, not with final causes or transcendent purpose, which informs past understandings and meanings, but pure practicality. Moving with the inherent flux of the times determines the emphasis for law and politics. The truth of ideas and the validity of political and economic movements are now to be found in the actual successes these movements have in achieving practical operations. As Justice Holmes articulated the rationale for the protection of free speech, “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” In response to Justice Holmes’s constitutional nominalism, Watson deftly notes, “If the Constitution — or the presently established constitutional order — is itself neutral or indifferent on this question [i.e., legitimate government], what is the basis for a constitutional ruling in favor of a First Amendment claim?” Indeed, progressivism’s pervasive skepticism ends in denying the philosophical grounding of constitutionalism and its animating principle — the rule of law. This, Watson argues throughout the book, is the damage rendered to American constitutionalism by progressivism and its twinned social-Darwinian and pragmatist components.
Against these apostles of ceaseless adaptation, progress, and organic growth of the state loom the men who framed America’s constitutional order and its underlying philosophy. Watson synthesizes the varying rationales for liberty held by the Founders under the overarching understanding they held of man’s natural rights in his property and person, and the corollary that government must secure these rights and, in turn, defend citizens from the government itself. However, this conception of government as necessary to the protection of man’s natural rights, but also preternaturally dangerous because of man’s vice-ridden passions and propensity to form factions, is simply incompatible with progressivism. Under the latter’s dispensation, the citizen now joins in an undulating partnership with the government, under the administration of experts whose intervention actualizes the liberty and self-development of persons and groups. From this perspective, natural rights are seen more as the negation rather than the fulfillment of freedom. James Madison has been thrown into the dock.
Abraham Lincoln also stands athwart progressive ideology in his attempts to reground American politics on a firmer understanding of the singular dignity of the person. Through the spoken word and through his statesmanship, Lincoln rearticulated the natural basis of republican government, and the goods it must secure and the evils it must crush if it is to endure. Noteworthy is Watson’s contention that after the victory over the slaveholding South, Lincoln’s recovery of the political justice of the Declaration of Independence was rejected by the rising tide of progressivism in the decades following his presidency. The denatured person seen by progressivism requires an unlimited government to deploy the operations and powers necessary to unlock social progress.
The spillover to our time can be seen in Justice Sotomayor’s statement to a group of law clerks that the appellate courts are where policy is made. Justice Sotomayor was merely following her progressive teachers, who have risen to dominance in American law schools and courts. Their continuing attempt to replace constitutionalism now finds its purest and most honest expression with those federal judges who openly equate judicial power with politics and policy. Watson’s scholarship exposes the intellectual stair-stepping that has taken us to the brink of this dangerous precipice.
-- Richard M. Reinsch is a program officer at Liberty Fund, and author of the forthcoming Whittaker Chambers: The Spirit of a Counter-Revolutionary, to be published by ISI Books.
National Review Online -
SCT takes incorporation case
Reply #41 on:
September 30, 2009, 10:51:08 AM »
Court to rule on gun rights, terrorism law
Wednesday, September 30th, 2009 10:04 am | Lyle Denniston |
Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county and city government laws. In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.
The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #42 on:
September 30, 2009, 11:40:10 AM »
Cross fingers and knock wood. . . .
Early Constitutional case law
Reply #43 on:
October 02, 2009, 11:58:16 AM »
A friend writes:
ith the very first Congress consisting almost entirely of Federalist (nationalist), and George Washington as President appointing Federalist to all post within his administration, including the Supreme Court, with the first Chief Justice being John Jay, the power grab for the new government began with ease and the new court led the way. The decisions of the court on various cases didn't matter so much but their opinions written on those decisions set the stage for interpreting the Constitution based on their personal understanding and not as to how the Federalist presented it at the ratifying debates or on the understanding of the ratifiers that agreed to it on those terms, this, even though every judge on the first court helped write the Constitution and argued for ratification giving assurance on those same terms.
An opinion on a relatively unimportant case regarding a grant to a probate hearing on the enforcement of a will in the Connecticut legislature, the 1798 case Calder vs Bull, would stand to set the majority opinion of high court justices till this day. It didn't seem to matter to them that it nullified the power of the Constitution to restrain the Federal government and its court. Justice Samuel Chase, in his opinion said that although the government powers were defined and that the states retain all powers granted them by the people and not denied by the Constitution; the state legislatures were not absolute and without control even if the state's Constitution did not limit their authority.
Chase said, "There are certain vital principles in our free republican government which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection where of government was established. An act of the legislature (for I cannot call it law), contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority."
Chase had based his opinion on natural law, the principles of free republican government. Any state that violated these principles in passing statutes, according to this opinion, were going against the general principles of law and reason and as such would not be enforceable as law. So who gets to decide if a state violated these principles? The federal courts of course! But it's worse than just that as one justice points out even though he to is a federalist.
Justice James Iredell rightfully blasted Chase with an opinion of his own in which he said that natural law or its principles were not regulated by any fixed standard and that if Congress or a state passed a statute consistent with the power it had been granted, that no court may declare it void merely because in their judgement it was contrary to natural law. Iredell insisted that the system of written constitutions was what guarded against legislative abuse and that the ultimate corrective was elections. Few judges have heeded this opinion.
During this period the federalist were going back on their assurances about the limited powers of the government. It became so bad that Jefferson and Madison teamed up to get the states to rebel against and resist federal policy that they saw as blatantly unconstitutional. They had to this in secret to avoid prosecution under the Sedition Act of 1798. The Constitution was in the hands of its enemies but the election of 1800 was the corrective.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #44 on:
October 15, 2009, 10:40:12 AM »
Alexander's Essay – October 15, 2009
Our Constitution is on Life Support
"Early to bed, early to rise makes a man healthy, wealthy, and wise." --Benjamin Franklin
That wise old sage, Ben Franklin, was prescient back in 1748, when he issued his simple Rx for success. Unfortunately, the wealth and wisdom of generations of Americans have been progressively supplanted by our central government's exercise of unconstitutional authority.
In regard to wealth, I refer most directly to our government's colossal spending and debt accumulation, and unlawful taxation.
As to wisdom, well, there's not much of that emerging from government-run school systems.
Having already depleted the wealth and wisdom of our great nation, the Obama juggernaut is determined to do likewise to health, that third prong of Franklin's trident. If successful, then we may rightly fear it as a deathblow to the greatest experiment in human history.
Where is Doctor Franklin when we really need him?
Simpletons across the United States and, indeed, the world, are beguiled by the Democrat health scare cacophony. While so much has been said, so too has so little. And, as we approach the seemingly inevitable passage of some such diabolical legislation, almost to a citizen everyone is screaming, "Stop the world, I want to get off!" Indeed, only elitist Democrats are charging full-steam ahead, constituents be damned.
Intentionally lost in all this noise is the Leftist tactic of drowning its opposition in waves of excessive and ever-changing health care minutia. With the devil being so well hidden in the details, this ensures that we remain distracted while Rule of Law is further usurped by the rule of man.
As Patriots, we are summoned to slice through this diversionary blather. And, to obtain proper analysis of this overarching objective, we must seek guidance from our founding documents, the Constitution of the United States of America and its superordinate document, the Declaration of Independence.
In a search of the Constitution, we find that the words "health," "medicine" or "medical" are mentioned -- drum roll please -- not even once: not within the original text, nor within 220 years of amendments. (A search of the Articles of Confederation yields similar results.)
To some, this exclusion indicates that the Founding Fathers were unconcerned about the health of their countrymen. But, supporters of this argument expose their condescension, and it is here mentioned to disabuse them of their disdain. For our Founding Fathers sacrificed so greatly for the birth of our nation -- in both blood and treasure -- that to posit such indifference does a great and grotesque disservice to their honor and their memory.
To others, this exclusion indicates that health care was mercifully omitted since medical care of the 1700s was so "primitive" that the cure often caused more harm than the ailment. They further argue that, given the foresight of modern medicine, our Founders would have surely incorporated universal health care within the Constitution. But, supporters of this argument expose their arrogance, and it is here mentioned to disabuse them of their haughtiness. For the medicine of our Founding Fathers was actually advanced in its day, just as the U.S. medicine of today is advanced, and just as tomorrow it will be thought primitive. This, of course, assumes that we successfully restore Rule of Law.
Alas, we discern seemingly little counsel from the Constitution.
And, as we turn to the Declaration, a search for the words "health," "medicine" or "medical" once more yields exactly zero results. Furthermore, the itemized grievances therein make nary a hint concerning health, even considering the "primitive" conditions discussed above.
Alack, we also discern seemingly little counsel from the Declaration.
However, neither do the Constitution nor the Declaration counsel us with direct verbiage concerning agriculture, textiles, construction and the whole raft of goods and services upon which those everyday necessities of food, clothing and shelter are stationed.
But, the Declaration does aver that all men are created equal, not of outcome but of opportunity; that they are endowed with the right to Life, not a guaranteed good life, not a guaranteed healthy life, but life with all of its miraculous potential; that they are endowed with a right to Liberty, the fusion of freedom and personal responsibility; and that they are endowed with a right to the pursuit of Happiness, the eclectic amalgamation of hopes and dreams and desires and necessities as defined by each individual -- not by faceless, nameless bureaucrats.
Furthermore, the Constitution's Preamble declares that its purpose is to establish Justice, the even-handed application of law to all citizens; to insure domestic Tranquility, the exclusion of class warfare; to promote (not provide) the general Welfare; and to secure the blessings of Liberty, there again, the fusion of freedom with personal responsibility.
So, our founding documents do guide us to proper health care legislation: for it is that which encompasses equality and liberty for consumers and providers alike; that which promotes life above death panels; that which encourages the medical hopes and dreams as defined by each individual; that which constrains, not magnifies, class warfare; and that which secures "the blessings of Liberty, to ourselves and our Posterity."
Anything more than this is an affront to constitutional order and Rule of Law. As Thomas Jefferson so keenly observed: "Were we directed from Washington when to sow, and when to reap, we should soon want bread." And, it takes little thought, or even imagination, to extend his estimation to the current health care debate.
The bottom line is that Article 1, Section 8 of our Constitution, which addresses powers of the legislature, never endowed Congress with authority to regulate or collect taxes for banking, mortgage or automaker bailouts. Neither does it present authority for them to subsidize production or service sectors such as health care. Indeed, James Madison wrote, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents..."
Sadly, not one Democrat bill addresses "health care" so much as it seeks omnipotent centralized government power and control, the currency of the Left. However, the proposals certainly betray the Left's condescension and contempt for Rule of Law, along with their frontal assault upon our Essential Liberty.
Patriot Readers, the U.S. Constitution is on life support. To prevent it from flat-lining, we must exude high dudgeon, we must slice through the Left's onslaught of minutia, and we must surgically endeavor with our every thought and deed to restore a healthy Rule of Law.
Semper Vigilo, Fortis, Paratus et Fidelis!
Publisher, PatriotPost.US, with J. Adams Clymer
Bill of Rights Ends at the Front Door?
Reply #45 on:
October 22, 2009, 09:56:18 PM »
Be a Good Victim
Under current law, the Second Amendment ends at your front door.
By David Rittgers
In August, a man shot two people to death on a bridge near San Francisco. At the moment of the killings, two on-duty Marin County sheriff’s deputies were within 100 yards of the shooter. One was close enough to see the muzzle blast of the shotgun. The police officers, however, did not move against the culprit. One, stuck in traffic, called in a description of the killer’s vehicle as he fled. The other positioned her car to prevent traffic from entering the crime scene.
These two law-enforcement officers did what police officers tell the public to do: Don’t intervene. Get a description of the offender. Call the police. Be a good witness.
Much debate ensued about whether the officers’ behavior was appropriate, but the real tragedy is that the victims of this rampage did not have the legal opportunity to arm themselves. To them, the message was clear: Be a good victim.
In Marin County, the jurisdiction where those two officers work, Sheriff Robert Doyle requires residents to demonstrate “extreme need” before they can get concealed-handgun permits. Among the few who have met this burden are private investigators, jewelry dealers, and a former district attorney.
Ten states still use a system that subjects lawful self-defense to the whim of a functionary such as Sheriff Doyle, a practice known as a “may issue” policy. (Two more refuse to grant concealed-carry permits to anyone.) The decision rests with the local chief law-enforcement officer, who may employ whatever criteria he deems valid — or deny permits for no reason at all. The result is that only those who are wealthy or politically connected are able to secure permits. Sean Penn got one after he claimed that a former employee was stalking him and that he had received a number of crank calls and letters.
This is not the case in most of the nation. Thirty-eight states have “shall issue” permit systems, which essentially require the chief law-enforcement officer to issue permits to everyone who passes background checks and training requirements. Many of these states have established reciprocity agreements, making the permits they issue valid in much of the nation. Years of experience have shown that permit holders are far more law-abiding than the general populace.
The propriety of “may issue” permitting is now being challenged in court on the opposite coast. The District of Columbia maintains a “shall issue” or, more appropriately, a “no issue” policy. After the Supreme Court struck down the District’s ban on handgun possession within the home last year, the District repealed the police chief’s power to issue permits to let gun owners carry their weapons outside the home. Several plaintiffs have filed a lawsuit challenging this refusal to issue handgun-carry permits.
In the Heller decision last year, the Supreme Court affirmed the Second Amendment right of individuals to keep arms in their home and have them in a condition useful for self-defense. The Court stressed that the individual right to arms was not an unlimited one, leaving undisturbed bans on carrying guns into “sensitive places” such as schools and government buildings. The D.C. suit does not challenge this power, but asks the court to recognize that the whole of the District of Columbia cannot be a “sensitive place.”
The District will almost certainly mention that the Heller decision also did not call into question 19th-century bans on concealed carry. This ignores the fact that while concealed carry was considered the mark of a brigand, open carry was accepted and legal. Modern feelings are the reverse; concealed carry is now practiced far more often than open carry. The plaintiffs do not specify the method of carry — open or concealed — merely that the Second Amendment does not stop at your front door.
The lawsuit intends to make the District face reality. Criminals have guns. They brandish them when the police are not on the scene and victims are outside of their homes. The D.C. government should not handicap the honest, law-abiding citizens who wish to carry arms in order to defend themselves.
One of the plaintiffs, Tom Palmer (disclosure: Tom is my colleague at the Cato Institute), once used a handgun to deter a mob of violent aggressors who were yelling death threats at him. Tom’s right, and the right of any other citizen, to arm himself should not be subject to approval by a civil servant who will not be present to protect them. Even if the police are present when someone is being assaulted or killed, they don’t necessarily have a duty to intervene — as evidenced by the praise given to the two Marin County officers by their sheriff after the aforementioned incident.
Just as the Supreme Court affirmed a right to be armed in the home for self-defense, the courts of the District of Columbia should affirm the right of law-abiding citizens to be armed and defend their own lives outside of their homes. Ending “may issue” policies that work to ensure the victimization of average people will make the District, and eventually the nation, a safer and more just place to live.
— David Rittgers is an attorney and decorated former Army Special Forces officer who served three tours in Afghanistan and is now a legal-policy analyst at the Cato Institute.
National Review Online -
The Coast Guard and the 4th Amendment
Reply #46 on:
October 23, 2009, 10:53:52 AM »
Interesting explanation of the basis for the Coast guard's search and seizure authority vs our 4th Amendment rights.....
A warning. If you have no interest in civil liberties, constitutional law, or the unmitigated growth of federal power... don't read the next several paragraphs.
About six weeks ago, I purchased a 35-foot fishing boat – an Everglades 35CC. I store the boat on a dock behind my house in Miami, where it is properly registered with the state of Florida. It takes me about 30 minutes to reach the ocean through canals maintained by the city of Miami. I've been out ocean fishing three times since I got the boat. On two of those three occasions, I've been threatened, detained, searched, and/or boarded by agents of the federal government without any probable cause of wrongdoing... or even any reasonable suspicion.
These actions were taken against me and my guests with considerable force: The stops involved high-speed boats, helicopters, large caliber automatic weapons, and black-booted officers decked out in SWAT-team like apparel. In the second instance, my boat was boarded and searched. IDs were taken from all eight passengers. We were ordered to stay on the far side of the boat – in the sun – for nearly two hours and treated like suspected drug smugglers while two Coast Guard officers searched every compartment of my boat – including the small tackle box drawers and our personal belongings.
They called the boarding a "safety inspection." And let me tell you... it is scary when heavily armed men are telling you not to make any sudden movements, to get on the far side of the boat. Their hands are sitting on top of their holsters... and you are 30 miles out at sea.
A safety inspection is supposed to consist of checking life jackets, fire extinguishers, the structural integrity of the boat, the registration, and a few other minor documents, like an oil discharge placard. How could doing this require two hours? Why would doing this require a stop 30 miles out to sea, involving a helicopter, a Coast Guard cutter, and a four-man boarding party? What's reasonable about a "safety" inspection that features black-soled boots marking up nearly every topside surface of a white, brand-new fiberglass boat? Why should our driver licenses have been taken from us?
You might recall the Fourth Amendment of the U.S. Constitution forbids unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Obviously, boats are not specifically named as a protected class of property... but papers and effects seem to be protected. And there's plenty of case law that has extended Fourth Amendment protections – to some degree – to places other than your home. For example, you can't be pulled over on the highway without some probable cause or some traffic violation. But... we had done nothing wrong. We received no citations whatsoever. We were in a brand new boat, running at 40 knots... clearly, there was no problem with the safety of our vessel.
Our new "friends" on USCGC 87318 Bluefin
So the question I had when I was eventually able to return home, after dark, following our two-hour "safety inspection" was: How in the hell do these guys get away with these actions?
Well, it turns out the Coast Guard and other customs agents have more power to search and seize than any other kind of law enforcement. The reason why dates back to 1790, when the Coast Guard was part of the Treasury Department. Back then, the inspections had nothing to do with safety – they were revenue cutters. The Coast Guard was looking for smugglers because, at the time, the main sources of revenue for the federal government were tariffs. Congress passed a law that would seem to violate the Fourth Amendment directly because it had to ensure its ability to collect tariffs:
That it shall be lawful for all collectors, naval officers, surveyors, inspectors, and the officers of the revenue cutters herein after mentioned, to go on board of ships or vessels in any part of the United States, or within four leagues of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests aforesaid, and of examining and searching the said ships or vessels...
Here's the fascinating part... The Coast Guard's role as revenue cutters was abandoned in 1915 with the advent of income taxes. The Coast Guard finally left the Department of the Treasury in 1967. It is now a part of the Department of Homeland Security. And yet, despite the obvious and well-documented changes in the role of the Coast Guard and the nature of its mission, the Supreme Court continues to deny U.S. citizens their Fourth Amendment rights, out of deference to the Coast Guard's former unique duties (see United States v. Villamonte-Marquez, 1983).
The government, which wouldn't ordinarily be able to stop, search, and seize any American-flagged vessel anywhere in the world at any time, is now empowered to do so simply because, 100 years ago, this power was necessary for tax revenues. So guess who is now routinely assigned to duty aboard Coast Guard cutters? DEA agents.
And yet... the Supreme Court continues to pretend these random searches are merely for "safety inspections." It is yet another case of the Constitution simply being ignored.
Now... you might say, so what? We like the Coast Guard catching drug smugglers. OK, fine. Just change the Constitution. There is a legal process for doing so. But you're fooling yourself if you think the Coast Guard is actually doing any good. The price of drugs has been falling ever since the "War on Drugs" was announced. We keep spending more money trying to stop drug smuggling... but what actually happens out there?
The Coast Guard has been turned into a weapon against the citizens of the United States. What's the Coast Guard actually doing? Why would they inspect a brand new boat? A boat that's obviously not involved in any large-scale drug smuggling and is loaded up with expensive fishing equipment and top-of-line Yamaha engines? Here's a possibility: If they find a single joint, they can seize the boat.
What's happened to the job of actually defending and protecting the people of the United States? In January 1984, just as the Coast Guard's new role as the top drug hound was being expanded, it began refusing ALL requests to help stranded boaters. Taxpayers fund the Coast Guard... which now refuses to help boaters in trouble and instead preys on boat owners at every possible opportunity. Maybe we shouldn't just ignore the Constitution.
Where in the C. is the power to , , ,?
Reply #47 on:
October 23, 2009, 11:10:12 AM »
second post of the AM
Digest · Friday, October 23, 2009
"[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments." --Alexander Hamilton
Pelosi: "Are you serious?"Government & Politics
A Serious Question
We have known for many years that Democrats view the Constitution as an obstacle to their goals, not as something to be revered or upheld -- despite their repeated oaths to do just that. And as Mark Alexander warned last week, our Constitution is on life support.
More evidence of the trauma inflicted by our elected "representatives" surfaced this week when CNSNews.com asked the only truly relevant question in the health care debate: Where in the Constitution is the authority to mandate that Americans buy health insurance?
Sen. Patrick Leahy (D-VT) was befuddled and deflected:
CNSNews.com: Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?
Leahy: We have plenty of authority. Are you saying there is no authority?
CNSNews.com: I'm asking-
Leahy: Why would you say there is no authority? I mean, there's no question there's authority, nobody questions that.
While Leahy's answer is both defensive and outrageously arrogant, in a sense, he's right: Not enough voters question the constitutional authority for anything Congress does. Even Republicans too often simply declare, "Me too, only a little less," instead of abiding by the Constitution.
The interviewer persisted, however, and again asked the question. Leahy dodged, saying, "Where do we have the authority to set speed limits on an interstate highway? The federal government does that on federal highways." He then walked away.
So to get this straight, Leahy defended Congress' unconstitutional attempt to take over one sixth of the U.S. economy by citing another unconstitutional law that was justly repealed 14 years ago.
House Majority Leader Steny Hoyer (D-MD) answered the question by saying, "Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect [a mandate that individuals must buy health insurance]. The end that we're trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility."
On the contrary, in 1994, the Congressional Budget Office reported that a mandate forcing Americans to buy insurance would be an "unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States."
According to Hoyer and his accomplices, however, the General Welfare Clause in the Constitution empowers Congress not only to "promote the general Welfare," but to provide it, demand it and enforce it.
But House Speaker Nancy Pelosi (D-CA) was the worst offender. "Madam Speaker," CNSNews.com asked, "where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Her brief reply spoke volumes about the Left's contempt for the Constitution and the Rule of Law: "Are you serious? Are you serious?" She then ignored the question and moved on to the next one. Her spokesman later added, "You can put this on the record: That is not a serious question. That is not a serious question."
Even in light of the current recession, we live in a day of unprecedented prosperity and, as a result, we have become complacent. Unfortunately, the likes of Leahy, Hoyer and Pelosi, who mock the Constitution instead of keeping their oaths, have almost completely robbed us of the "Blessings of Liberty" which our Founding Fathers pledged "our Lives, our Fortunes and our sacred Honor" to defend.
Though questions concerning constitutional authority are finally being asked inside the Beltway, they have been asked with ever-louder voices across the nation since Ronald Reagan reinvigorated that debate. Of course, since the last election, the national debate chorus has become much more unified.
For example, in The Patriot's home state of Tennessee (which Al Gore claims as "home" but which gave its electoral votes to Bush, twice, and then to McCain), there is a 10th Amendment battle underway, and not a minute too soon.
State Republicans are organizing a state sovereignty campaign in opposition to the federal government's abuse of states' rights. This week, a legislative committee approved a motion to invite representatives from the legislatures of the other 49 states to join a "working group ... to enumerate the abuses of authority by the federal government and to seek repeal of its assumption of powers."
Can you say, "Constitutional Convention"?
Predictably, Obama's state cadre of Democrat sycophants are huffing and puffing. State Democrat Chairman Chip Forrester says, "It's unfortunate that Republican members of the state Legislature have jumped on this crazy train. This is nothing short of lunacy. The Tea Party organizers and their ultra-right wing cronies began this ridiculous issue to disrupt civil debate about how to move this state and nation forward. I hope they are not suggesting we fight another Civil War."
No, we should give the Convention a chance before taking up arms. And if it comes to the latter, I suggest Mr. Forrester say goodbye to the sun and slither down a very deep hole.
re. Where in the constitution...power to mandate Americans buy health insurance
Reply #48 on:
October 23, 2009, 08:12:06 PM »
"Where in the Constitution is the authority to mandate that Americans buy health insurance?"
I passed that excellent question to my liberal senators, Amy Klobuchar and the Honorable Al Franken as well as Congressman Keith Ellison and one friendly Republican. Will keep the board informed of any interesting answers.
Maybe the federal authority to mandate health insurance is hidden in between the federal power to forbid states from limiting the right to kill your young and the search exemption for pleasure crafts.
A constitutional convention is a bad idea in a climate where the existing provisions are already ignored and when the opponents of limited government are clearly in power.
Instead it seems to me that each time federal authorities step on the constitution we should push for an up or down vote on repealing that constitutional protection, and see where they stand. For example, McCain-Feingold should have been coupled with a demand for congress to vote yea or nay on repeal of the 1st amendment. Couple Coast Guard funding with a demand for a vote to repeal the 4th amendment, and health reform with a demand for a vote for or against repealing the 10th. If 2/3 of the House and 2/3rds of the Senate vote repeal, off it goes to the states. I'm assuming that most people like constitutional limits on power, but like Pelosi - they just forget we have them.
Reply #49 on:
October 24, 2009, 06:29:20 AM »
With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.
This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture.
By now, the individual cases in Illinois have been resolved with either a forfeiture or a return of the property, leading the Justices to question during oral argument whether the case should be dismissed as moot. Whether the court considers the details in Alvarez, the court will soon need to resolve when detention of property violates due process.
Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor's office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern.
The numbers can be hefty. In 2008, the Chicago Police Department bragged it took in some $13.5 million in asset forfeitures, nearly double what it had seized the previous year. Golly. Inquiring minds will wonder if there were actually double the situations that called for asset forfeiture last year, or if the Chicago PD is simply more assertive about detaining property when the city is short of money.
The case comes from the Seventh Circuit Court of Appeals, which vindicated the citizens when it ruled that the time between forfeiture and judicial hearing presented an unconstitutional delay. The court required the state to provide property owners with an informal hearing to establish whether there is probable cause to continue to keep the property in custody.
The question for the Supreme Court is whether to uphold what's known as the "Mathews standard," a well-worn method by which courts determine how individuals may challenge government "takings." The standard requires courts to take into account the individual harm caused by a property seizure as well as the risk of mistakes and the cost of additional hearings or other procedures. Illinois prefers a looser standard, allowing the state to continue to delay due process.
The Illinois law compares awkwardly with the federal Civil Asset Forfeiture Reform Act of 2000. As the Cato Institute details in an amicus brief, while the two laws may establish comparable time frames, federal civil forfeiture actions can often run into the hundreds of millions of dollars, a level of cost and complexity well beyond the property at issue under the Illinois drug law. The better match-up is with other state forfeiture laws, and here Illinois performs miserably, taking many times as long to provide a hearing as the likes of Florida, Iowa, Arizona, Missouri and Texas.
We're all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.
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