Constitution

So, New York Mayor Michael Bloomberg believes that the public's interpretation of the Constitution must evolve in the face of terror attacks such as the one in Boston. "You're going to have to have a level of security greater than you did back in the olden days," the man explained, "and our laws and our interpretation of the Constitution, I think, have to change."

Bloomberg don't get to make that decision.  We do.  For now, at least. 

Bloomberg's recent efforts to raise his national profile on issues such as gun control suggest that he plans to run for higher office soon.  I won't be surprised if he seeks the Democratic nomination for President in 2016.  If so, quotes like this, along with nanny-state behavior like regulating soda cup sizes and banning salt from restaurant food, will hopefully destroy any chance he has of receiving the nomination. 

If it doesn't, we're really in trouble.

A lawsuit has been filed that threatens to strike down the entirety of the Affordable Care Act on procedural grounds -- by pointing out that the Constitution requires bills which raise revenue to originate in the House.  Obamacare did sort of original in the House -- as HR 3590, the "Service Members Home Ownership Act".  The Senate gutted the bill and replaced it with Obamacare, then sent the amended version to the House. 

It's not unusual for either body to "amend" legislation by completely replacing the original text.  The legal debate will undoubtedly deal with whether the earlier precedents can be distinguished from this new case on some technical grounds.  What they should do is come face to face with the absurdity of claiming that a bill which "originated" in the House as legislation dealing with home ownership for veterans can meaningfully be considered the same legislation after the Senate has gutted it and replaced it with a completely different piece of legislation, particularly a huge and controversial one such as Obamacare.

To be honest, I don't think the lawsuit is likely to succeed.  The shadow of the Supreme Court's prior ruling is likely to be rather intimidating to the lower courts, and the current members of the court have spoken on the law.  The only hope for a change would be Roberts -- he might see this as his way out of a bad decision.

As far as I am concerned, though, the Constitution says what it says, and the Senate's practice of using shell legislation to get around this requirement needs to be stopped, regardless of existing precedent to the contrary.  Obamacare is a better place than most to start.  Let's hope at least 5 Justices agree with me.

It seems that the left -- or at least the portion of the left who work at CBS News -- has decided that they are tired of all this living document bullshit and are ready to give up on the whole thing.  Just declare it irrelevant and unnecessary and stop following it.

This is good.  It's good to have clarity.  It's good for them to openly advocate for this.

It reminds us what we are up against.

President Barack Obama just suffered a humiliating defeat in federal court. A top federal appeals court has removed three presidential appointees from power, and invalidated all actions they?ve taken over the past twelve months.  

This is a small victory for the Constitution, but it is a victory.

... and why we don't have it anymore, spelled out by the washington times.

I like the specific proposals he makes here...but I am terrified of the consequences of a significant Constitutional rewrite.  There's a significant chance of this sort of effort being hijacked to enable Hope and Change.  When what we actually want is a return to the roots of our Constitution.  It's worth considering, though.

UPDATE: Another good argument in favor of certain non-democratic Constitutional institutions.

To bring federal charges against Edward T. Norris, prosecutors relied on a broadly drawn public corruption statute now under challenge in a U.S. Supreme Court case that could have direct implications for Maryland's former state police superintendent.

The law allows U.S. prosecutors to pursue virtually any local corruption investigation, provided only that the probe is linked to a government agency that received at least $10,000 in federal funds. The statute does not require prosecutors to prove any connection between the alleged offenses and the federal money.

Its wide latitude has made the 1984 law popular with prosecutors, including the U.S. attorney for Maryland, Thomas M. DiBiagio, who took office two years ago with a promise to crack down on corrupt public officials, and who said yesterday that when his office was faced with credible evidence of wrongdoing in the Norris probe, "a decision was made not to look the other way."

This is more of a jurisdictional question than anything else. Should local or federal governments be investigating corruption cases? On the one hand, clearly the federal government is likely to be immune to the sort of local influence that a corrupt official most likely wields. On the other, it allows federal officials to stick their fingers into local government with impunity, and the threat of a federal investigation for corruption can be used for a lot of things that aren't exactly related to fighting corruption.

The chief justice of the Alabama Supreme Court, Roy S. Moore, has forgotten that Robert E. Lee surrendered to U.S. Grant at Appomattox Court House, not vice versa. Admired by some political conservatives, Justice Moore denies the constitutional authority of federal courts to issue rulings interpreting the establishment clause of the First Amendment that he is bound to obey.

I think I've finally figured out why politicians seem to be confused and utterly unaware of what the U.S. Constitution actually says. Either they never took the time to sit down and READ it, or they have their own version that is very different from the one that is often referred to but seldom understood. For those who have taken the time to e-mail me over the past 6 months and point out that I seem to unjustly whack the left and ignore the right, please note that "politicians" includes republicans and democrats. The reason that I generally point out the shortcomings of the democrats is because there are just so darn many of them. I apologize, not for anything that I've written about democrats by any means, but for what a couple of readers believe is letting the republicans off with a slap on the wrist. They are both to blame for most our current problems.

As we have seen many times, politicians, bureaucrats and special interests in Washington, D.C. are slight-of-hand practitioners without equal. The traveling carnival trickster who deceives with card tricks and shell games could learn techniques from the experts in our nation's capital. On June 4, 2003, the Establishment launched its juggernaut of deception -- the "Continuity of Government." The Establishment is working to amend the Constitution of the United States. If it succeeds, our system of government will be changed forever.

Faced with a freewheeling Iraqi media, the U.S.-led occupation authority is devising a code of conduct for the press, drawing protests from Iraqi journalists who endured censorship under Saddam Hussein and worry for their newfound freedom. Coalition officials say the code is not intended to censor the media, only to stifle intemperate speech that could incite violence and hinder efforts to build a civil society. The country is just too fragile for a journalistic free-for-all, they say.

This is both embarassing and horrifying. The Bush Administration continues to make missteps in Iraq.

The principle of limited federal authority is the bedrock principle upon which our government was created. America's founders envisioned a nation of strong, independent but united states, and a very limited and myopic central system. However, when General Robert E. Lee surrendered to Ulysses S. Grant at Appomattox Courthouse, Virginia, the vision of the Founding Fathers was destroyed. The principle of limited federal authority was cast aside and a nation preoccupied with unlimited federal power and authority took its place.

First off, notice the restrictive term that is used in the First Amendment. It is not written broadly. It doe not say that no state or local government or any such subdivision shall make no law respecting an establishment of religion. It merely says that Congress shall not. Now compare that wording to the wording of the Second Amendment. This amendment says 'the right of the people to keep and bear arms, shall not be infringed'. The first section of this amendment gives justification for the prohibition of the infringement. It does not say that the militia shall regulate the keeping of arms. It doesn't even define a militia. It says that a well regulated militia is necessary to the security of a free state. With these two phrases, we can conclude that the Founding Fathers intended that the right to bear arms, any kind of arms, should be unrestricted. No laws whatsoever restricting the possession of any kind of arms or firearms are permitted.

In a 9-3 decision, the Supreme Court ruled today in the case of United States of America vs. the Dixie Chicks that the Bill of Rights is unconstitutional. Writing for the majority, Justice Rehnquist made it clear that the court wasn't completely opposed to freedom of speech, religion, assembly, etc., but that the Bill of Rights as written was simply too vague and could, therefore, be used in the wrong way by people opposed to our democratic way of life.

The Continuity of Government Commission, a joint project of the American Enterprise Institute and the Brookings Institution, spent nine months studying how Congress might carry on if many of its members were killed or incapacitated in an attack on Washington.

This "commission" has spent 9 months deciding that, in short, Congress should be able to pass laws concerning emergency elections without bothering to pass a Constitutional Amendment for each change. This is dangerous, because in an emergency, Congress would certainly be tempted to pass laws favoring themselves. Any changes to our electoral and succession process MUST receive the time, consideration, and debate necessary to protect our liberty..

The Liberty Committee includes The Liberty Caucus which is headed by TX Rep. Ron Paul, the only sitting (or standing or leaning or just hanging about) member of Congress who ever ran for president on the Libertarian Party ticket. Therefore, wisely or otherwisely, he's the only politician I believe. And he wants me to believe that a coalition of connivers intends to convert our Constitution so that reps get appointed rather than elected in case of a national emergency. The coalition is called COG, which stands for Continuity of Government. COG is a solution to a conjured up catastrophe that will likely never happen:

There is a constant battle between the government and the Constitution. The government needs the Constitution to legitimize its power but at the same time seeks to shirk any limits it imposes on that power. An insidious tactic in this campaign is the advancement of the idea that if the public wishes to be safer, the government must be subject to even less constitutional control. This is nonsense, of course, and historically indefensible. The greatest and most present danger to civilized nations in the last few centuries has usually been their own leaders.

The Supreme Court is looking beyond America's borders for guidance in handling cases on issues like the death penalty and gay rights, Justice Ruth Bader Ginsburg said Saturday.

The justices referred to the findings of foreign courts this summer in their own ruling that states may not punish gay couples for having sex.

And in 2002, the court said that executing mentally retarded people is unconstitutionally cruel. That ruling noted that the practice was opposed internationally.

"Our island or lone ranger mentality is beginning to change," Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention.

I can't express how scary this is. While I don't disagree with the ruling on sodomy laws, I have very strong opinions on US sovereignity. The Supreme Court needs to look to our laws and our Constitution that provides the authority to create them for guidance -- not internationally.

Luckily she is only one justice -- and others hold the opposite view.

Normally, Clayton Cramer gets his history right.  But he's got a bug about some things (one fairly typical of conservatives), and as a libertarian it tends to rub me the wrong way occasionally.  Now, it seems he's forgotten his history in favor of his (arguably rational) prejudices; in the context of an attack on the ACLU, he's making the argument that the Constitution cannot protect activities that were universally considered criminal by the original United States at the time the Constitution was ratified. 

I won't dispute the fact that the ACLU is often insane.  Nevertheless they do fill a necessary role when they are not acting as political attack dogs; someone does need to defend our principles even in cases that make for poor public relations. 

But the point is to address Clayton's claims about constitutional protections:

It has argued (successfully, to the idiots that control the Supreme Court) that virtual child pornography is protected by the First Amendment--even though it is very clear that this would have been unlawful in every state when the states ratified the First Amendment.

Perhaps most insidiously, it has claimed that some things are constitutionally protected civil liberties which were felonies in every state when Congress passed the Bill of Rights.

I think banning real child pornography (ie, made with real children) is reasonable.  It cannot be made legally; it involves the commission of a serious crime.   Banning "fake" child pornography is probably a good social policy, albeit impossible to enforce, but does present Constitutional issues, even if it would be universally illegal in the original 13 States.  Why?  The First Amendment was originally intended to bind only the Federal Government.  The States could regulate speech to a greater or lesser degree, depending on their own Constitution.  The Federal Government was barred from doing so, but this did not apply to the States.

The Federal Government was not empowered to ban speech of any kind, and the First Amendment then actively barred it from doing so in the guise of some other activity which it was empowered to perform. 

The Bill of Rights was not applied to the States until the 14th Amendment.  At that point the States were explicitly bound by the Bill of Rights (and later court decisions have reinforced this principle).  If the Bill of Rights contained broader protections for a right than the State Constitution, then something which could be outlawed under the State Constitution might become protected exercise of a right.  That was in fact the explicit intent of the Amendment; States were no longer trusted to respect the rights of their population.

Does that make sodomy a protected right?  The Supreme Court thinks so; I don't see any explicit protection for it in the Federal Constitution.  On the other hand, it's none of my business and none of the government's business what consenting adults do in the privacy of their own home.

But Clayton, if you're going to make the case for overturning Lawrence v Texas, you need to do so based on something more solid than a misunderstanding of federalism.

Dafydd from Captain's Quarters talks about unenumerated rights.  It's thought-provoking and worth a read.

It's a pity the government has forgotten all about those rights, but the people haven't -- yet.

Zell Miller, Georgia's maverick Democratic senator, says the nation ought to return to having senators appointed by legislatures rather than elected by voters. Miller, who is retiring in January, was first appointed to his post in 2000 after the death of Paul Coverdell. He said Wednesday that rescinding the 17th Amendment, which declared that senators should be elected, would increase the power of state governments and reduce the influence of Washington special interests.

"The individuals are not so much at fault as the rotten and decaying foundation of what is no longer a republic," Miller said on the Senate floor. "It is the system that stinks. And it's only going to get worse because that perfect balance our brilliant Founding Fathers put in place in 1787 no longer exists."

He's got a point. The primary force of restraint upon the growth of the Federal Government was intended to be the interests of the States. Originally, they were practically separate nations. The Senate was to act as representatives of the State Government, preventing the Federal Government from encroaching where the States had a proper claim.

Why is this a good thing? Well, consider the checks and balances idea. Currently we have a Federal government that is very much out of touch with the people, and growing in size and scope rapidly. At first blush, having the Senators elected directly seems like a good idea, since they are then responsible to the people of their state. However, individual access to senators is non-existant; there are too many people in each state. Special interests come to dominant access and persuasion efforts.

If Senators were elected by their state governments, however, they would have a much smaller constituency -- and one with much more opportunity for personal contact with the actual citizens. The state legislators are easily available to their citizens (rather than safely hidden in Washington), and can provide a very vocal voice to their senators.

Although modern communication and travel have removed many of the original, practical concerns underlying the constitutional framework for government, the citizens of this nation have no more access to a Senator today than they did when the Constitution was written.

There is a move a foot in the Congress to essentially change the way the United States Constitution is amended. Eleven Republican congressmen have decided that the old system of congressional passage coupled with state ratification is just too cumbersome for this enlightened age. Their idea? To simply allow the House and Senate to amend our Constitution with a simple two-thirds majority vote.

This is a roundabout way of getting around to talking about a new (proposed) law that would allow Congress to override a decision of the Supreme Court with a 2/3rds vote. It's not quite the same as amending the constitution, but it's fairly close. Congress could prevent the Supreme Court from striking down laws the court considered unConstitutional. (Presumably, they could also override in the other direction, but they could also strike down the law with only a simple majority).

Is this sneaky and underhanded? Sure. It violates the balance of powers; with this in place the Supreme Court could no longer act as an effective check on Congress -- and thus, neither could the Constitution itself. Make no mistake, this is a wolf in sheep's clothing.

The commander of American-led forces in Afghanistan said Tuesday that the military had adopted new tactics to combat Taliban and Al Qaeda militants in the country.

The officer, Lt. Gen. David W. Barno of the Army, said that in the past three months, American units down to the level of 40-soldier platoons had been dispatched to live in villages where they can forge ties with tribal elders and glean better information about the location and activities of guerrillas.

According to the linked article, the military in Iraq has adopted a new tactic in the fight there: sending soldiers to live in the villages. But wait -- isn't there something in the Bill of Rights about that? Indeed there is: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law..

We don't know whether the soldiers have the "consent of the owner" in this case, but if they do not, and if Congress has not passed any laws specifically authorizing this tactic ("but in a manner to be prescribed by law", meaning, the military commander on the scene can't just make it up), then it seems we are faced with a clear violation of the Bill of Rights. And that's scary.

I don't expect Iraqi citizens to be familiar with this particularly obscure amendment. Nor, indeed, would most Americans recognize it unprompted. But the Iraqi resistance (much as I think they are on the wrong side) are in a situation very similar to the American colonies during the Revolutionary War. That is, they are resisting occupation by a foreign power. And, disturbingly, the United States proposes to respond with the same tactics the British used against us some two centuries ago.

And our Constitution does not specify that these rights are accessible only to US citizens, or within the borders of the US. The wording is any house, not any house in the United States, or any house owned by a US citizen.

At a minimum, to make this legal, Congress must pass specific laws authorizing and defining the practice. Whether those laws are valid is then a separator issue, since whether US law has jurisdiction over Iraq is an open question. (De facto, we control the territory; de jure, I'm not certain). And somehow, I doubt that Congress has found the time to pass anything specifically authorizing this tactic; they don't move fast enough.

So we are faced with a government that openly violating the Bill of Rights. What, then, are we to do?

I asked Jon Roland, who runs constitution.org, to comment on this issue:

This practice of quartering U.S. troops in private Iraqi homes raises the question, does the Third Amendment protect against this, without congressional legislation to regulate it?

The simple answer is no. Although the Bill of Rights recognizes rights that are the rights of persons everywhere, neither Congress nor U.S. courts have jurisdiction to legislate or adjudicate for persons outside U.S. territory, and thus provide a remedy. The ancient principle is that there is no right without a remedy.

If there were a declared state of war, then the laws of war, authorized under the Laws of Nations Clause, would apply, which are essentially laws governing U.S. forces and diplomatic personnel abroad, and for the purposes of this situation, the Uniform Code of Military Justice.

So, essentially, without a declaration of war or letters of marque and reprisal, the actions of U.S. forces in Iraq are piracy, and all persons involved are subject to criminal prosecution. However, since the emergence of the practice of U.S. courts to deny access to private parties for the conduct of criminal prosecutions, only U.S. attorneys would be allowed to prosecute, and they are not going to prosecute the President or his troops.

For more on this see http://www.constitution.org and use our local search engines to search on the terms used in this article.

Constitutionalism, a blog on Constitutional law, civil rights, and other things, by Jon Roland. If you don't recognize the name, Roland runs constitution.org, a compelling repository of the documents that form the backbone of our government as it was originally intended. Although we don't agree on everything, he's dependable for interesting and well-thought-out opinions.

The post that inspired me to mention him is this account of being interrogated by police while displaying a sign from a local highway overpass. The sign simple celebrated "Constitution Day", yet the police felt the need to question and harass him over it.