Category: U.S. Constitution

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initiative, referendum, and recall judiciary U.S. Constitution

No Right to Defend Your Rights

You have no right as a voter to defend your interests as a voter. Not in federal court.

So decides the Supreme Court in Hollingsworth v. Perry, a case about a controversial California ballot question. The court ruled 5-4 that petitioners “lack standing.” Their interest wasn’t “particularized” enough.

Passed in 2008, Proposition 8 amends the California constitution to stipulate that “only marriage between a man and a woman is valid or recognized in California.”

Two questions must be distinguished. One, whether Proposition 8 is consistent with the U.S. Constitution. The high court could have agreed with the lower one that it isn’t. Two, whether voters – in this particular case, the official state recognized proponents of the measure – may judicially defend a law brought to ballot by themselves and duly enacted, when state officials decline to defend that law.

I’m no fan of Prop 8. But for the land’s highest court to rule that voters and petitioners have no “standing” here is a horrid precedent. It tells government officials to take heart if they dislike a law that voters have passed. Maybe not enforce or defend it at all, say — and regardless of any constitutional finding. After all, what can We the People do? It’s not as if we have standing!

Justice Kennedy, in dissent, pinpoints the default: “the Court fails to grasp or accept . . . the basic premise of the initiative process . . .  The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.”

Oh, yes, the people do have standing.

This is Common Sense. I’m Paul Jacob.

Categories
national politics & policies U.S. Constitution

Imperator Obama

The current issue of The National Interest contains a perceptive essay by former Senator Jim Webb, “Congressional Abdication.” George F. Will echoes Webb’s arguments at The Washington Post, in “A bipartisan abdication.”

So, some abdication has occurred. Of what?

A congressional role in making U.S. foreign policy:

When it comes to the long-term commitments that our country makes in the international arena, ours can be a complicated and sometimes frustrating process. But our Founding Fathers deliberately placed checks and counterchecks into our constitutional system for exactly that purpose. The congressional “nuisance factor” is supposed to act as a valuable tool to ensure that our leaders — and especially our commander in chief — do not succumb to the emotions of the moment or the persuasions of a very few.

The problem, Webb argues, is that Congress has given up most of its power and authority, just letting presidents George W. Bush and Barack H. Obama do pretty much whatever they want. And recently it’s gotten much worse. “President Obama has arguably established the authority of the president to intervene militarily virtually anywhere without the consent or the approval of Congress,” writes Webb, “at his own discretion and for as long as he wishes.”

Will summarizes the problem thusly: “Imperial presidents and invertebrate legislators of both parties have produced what Webb correctly calls ‘a breakdown of our constitutional process.’ Syria may be the next such bipartisan episode” of undeclared war . . . where the Congress merely sits on its hands and waits for the CNN reports.

The imperial nature of our system has been a long time emerging. As with ancient Rome, Big Men usurped power, and legislative bodies ceded authority, step by step, over time — becoming less republican.

This is Common Sense. I’m Paul Jacob.

Categories
Accountability national politics & policies U.S. Constitution

Droning On?

For my birthday, Sen. Rand Paul started a filibuster.

I jest. The junior senator from Kentucky had something more important than my big day on his mind: the U.S. Constitution.

At 11:47AM, Sen. Paul took the floor: “I rise today to begin to filibuster John Brennan’s nomination for the CIA. I will speak until I can no longer speak. I will speak as long as it takes.”

I didn’t watch all of his endeavor (yet). What I did catch was amazingly eloquent.

It was also very specific. The Kentucky senator had asked candidate Brennan not one but two substantial lists of questions regarding the drone strike program. He also asked the Obama Administration whether the president thinks he has the constitutional right to use drone strikes against non-combatant Americans on American soil. Brennan had answered well enough, but left the administration to answer for itself. Attorney General Eric Holder responded, later, evasively.

And so Rand Paul took to the floor. And spoke at length — without teleprompter. He was joined, later, by Democratic Senator Ron Wyden. And then some Republicans, including Mike Lee, Ted Cruz, and Marco Rubio.

Though Rand Paul’s office had started a Twitter hashtag, #filiblizzard. It didn’t take off. Instead, #StandWithRand became the international trending topic.

The world watched.

But filibusters have to end. About 13 hours in, Rand Paul did end it, though not before insisting that, with regard to our rights, compromise is very, very bad: “The Fifth Amendment is not optional.”

If this filibuster solidified that constitutional principle, what a present that would be — and not just to me, but to all Americans. And the world.

This is Common Sense. I’m Paul Jacob.

Categories
national politics & policies U.S. Constitution

Drone Strikes at Home?

The main controversy over the current administration’s drone strikes program has not been about committing acts of war without a declaration of war.

It has not been about committing acts of war within the boundaries of allied countries.

It has not been about killing innocents.

And it has certainly not been about the reliability of information that gets to the president’s desk that might cause him to order a drone strike.

No, the controversy has centered on the killing American citizens abroad with drone strikes. Some people favor it, since the main American targets are “traitors” and “terrorists.” But many others balk: Without a trial, how do we determine their guilt?

The usual response to that? “This is war!”

But no war has been declared. And, ahem, our side often blows up people far away from any battlefield and in allied territory . . . including a 16-year old American citizen killed in Yemen for being related to his father, Anwar al-Awlaki.

This, however, is just the tip of the enormity. The language from the folks in the administration suggests that borderlines mean nothing to them. Which raises a big question: “What about within our borders?”

The administration has been evasive.

This disturbs Sen. Rand Paul. “What I’m asking is about drone strikes on Americans, on American soil. The president will not answer that he cannot do this. In fact, he seems to be asserting that he can do this; all he’ll say is he doesn’t intend to do this.”

Sending drones to kill foreigners, innocents as well as enemies, on allied soil, in secret, without any method of accountability, is the behavior of a rogue nation. To claim the same power  on our own soil? That’s tyrannical.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights U.S. Constitution

Earnest Umbrage Goes Indecent

You’ve probably seen Hillary Clinton in a bikini.

She didn’t pose for that famous photo. No paparazzo snapped it. It was constructed in Photoshop, with her head placed on a somewhat more buxom model’s body. It was a joke.

I’m not sure I “get” the joke completely. Sure, take the Pompous Pol and turn her into a pinup. But, still.

Also not very funny was the recent Photoshopping of Georgia State Rep. Earnest Smith’s head onto the body of a porn star. Andre Walker did the work, as he confessed on Monday. “Rep. Earnest Smith Shows His Thin Skin, Says I Have No Right to Make Fun of Him,” Walker amusingly titled his Georgia Politics Unfiltered piece. The picture? Less amusing.

But de gustibus non est disputandum and all that.

It’s not as if the political mockery that the Founding Fathers engaged in was nice, or even decent.

Well, sooner than you can say “Alien and Sedition Act,” Rep. Smith co-sponsored a bill, HB 39, to make Photoshopping politicians onto nude or indecently photographed bodies a misdemeanor, subject to a $1000 fine.

Earnest Smith summed up his case with PC sanctimony:

No one has a right to make fun of anyone. You have a right to speak, but no one has a right to disparage another person. It’s not a First Amendment right.

He couldn’t be more wrong. The Supreme Court has famously come down on the side of making fun of politicians.

Legislators’ biggest problem is that they want to legislate, even where inappropriate. Maybe they should mandate tests in constitutional law before they are allowed to represent us.

Or perhaps “Earnest” should take a lesson in Irony. Or in “lightening up.”

This is Common Sense. I’m Paul Jacob

 

 

Categories
national politics & policies too much government U.S. Constitution

Authorized, But in the Red

According to the late economist James Buchanan, there exist three basic categories of government functions: protective, productive, and redistributive.

The protective functions are most basic. As inscribed in the Declaration of Independence, we are to be protected by government not in a scattershot way, but by having our rights delineated and defended. Think courts and the military.

The redistributive functions make up the bulk of the federal government, today . . . according to a recent Heritage Foundation chart, “More than 70 Percent of Federal Programs Goes to Dependence Programs.” Most of these, like Social Security and Medicare, were not originally contemplated as tasks for the federal union, and are flagrant violations of the Constitution.

But some “productive” (business-like) functions were placed into the Constitution, the most famous being the authorization to create a postal service.

Though no longer an official wing of the U.S. Government, the Postal Service is still hamstrung by congressional micro-management, as the shrinking mail biz busies itself trying to erase red ink.

The current notion is to drop Saturday delivery of all but packages. The enterprise hopes to save billions on this reform, alone, and was able to initiate the service cut without Congress’s approval by gambling on what some are calling a legal loophole.

Perhaps as politically dangerous is the ongoing attempt to get rid of post offices in smaller communities, replacing them with “Village Post Offices” that private enterprise would run.

It’s worth noting that though the Constitution allows for mail delivery and a few other “productive” services, these aren’t very productive — at least, they tend to operate in the red.  Besides, what is authorized by the Constitution doesn’t mean required by the Constitution.

This is Common Sense. I’m Paul Jacob.

Categories
national politics & policies U.S. Constitution

Power-Grabbing In Recess?

A recent court decision has slowed—dare we hope, stopped?—the erosion of an important check on executive power. This is the constitutional provision that the president’s appointment of certain high officials be subject to Senate approval.

Trevor Burrus of the Cato Institute reminds us that presidents have sought to circumvent the advise and consent requirement since the days of Warren Harding.

The Constitution enables the president to make appointments when the Senate is in recess, i.e., between sessions. (In the days of the Founders, that hiatus lasted many months.) Starting with Harding, though, presidents began making appointments during so-called intra-session “recesses,” or breaks within a regular session. These “recesses” were as brief as ten days by the time we got to Clinton and Bush II.

In 2007, the Senate began conducting brief pro forma sessions within these “recesses” to prevent appointments from being made without its consent. Last year, President Obama counter-moved by declaring that he had authority to determine what constitutes a session. On this basis he made several appointments sans the Senate’s consent.

The DC Court of Appeals has now ruled the maneuver unconstitutional. “The power of a written constitution lies in its words,” writes Chief Judge David Sentelle. “When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.”

Do presidents sometimes find the Constitution inconvenient? Too bad.

This is Common Sense. I’m Paul Jacob.

Categories
free trade & free markets general freedom U.S. Constitution

Equally Unequal

Two court cases come to our attention, courtesy of Cato’s Ilya Shapiro. Both involve the favoring of members of one group over another.

The Sixth Circuit ruled that a voter-approved amendment to the Michigan state constitution outlawing racial preferences in college admissions would violate the U.S. Constitution’s equal protection clause. The amendment states in part that Michigan public colleges and universities shall “not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin. . . .”

In his dissent, Judge Richard Griffin writes: “The post-Civil War amendment that guarantees equal protection to persons of all races has now been construed as barring a state from prohibiting discrimination on the basis of race.” Shapiro calls the decision Orwellian.

The other case involves California law banning sellers of eyewear who are not state-licensed optometrists and ophthalmologists from conducting eye exams and selling glasses at the same place of business. The law prevents national eyewear chains from competing effectively in California (since customers prefer to get their glasses and eye exams in one shop).

Cato joins an amicus brief urging the Supreme Court to take up the California case. Shapiro also says that because there are two conflicting lower-court decisions on the Michigan question, the Supreme Court is likely to add that case to its docket.

Let’s hope all further rulings are based on a clear-sighted respect for equal rights under the law.

This is Common Sense. I’m Paul Jacob.

Categories
initiative, referendum, and recall Tenth Amendment federalism U.S. Constitution

Put Federalism In Your Pipe

Though centralized power, coalescing in Washington, D.C., has increased in recent years as a bipartisan effort to grow government, it’s worth noting that true federalism is not dead.

Take one of America’s longest-running atrocities, the “War on Drugs.” The American people are rebelling, leaving their political representatives, state and national, in the back seat. The recently successful marijuana legalization initiatives in Colorado and Washington State are already taking effect, thus marking a major retreat in the once-popular, now increasingly hopeless war.

Last Friday, The Seattle Times reported that King County has dismissed 175 cases involving people over 21 and possession of one ounce of cannabis or less. “Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month,” explained the county prosecutor.

A smaller number were dismissed in Pierce County, with its prosecutor saying that, “as a practical matter, I don’t think you could sell a simple marijuana case to a jury after this initiative passed.”

In Colorado, a major drug task force has been disbanded. The excuse is lack of funds, but I suspect that Colorado officials had read the writing on the wall, and it wasn’t “Mene, Mene, Tekel, u-Pharsin” — it was the wording of Colorado’s Initiative 64.

The federales don’t have the manpower to enforce federal law in the 50 states, or the constitutional authority to dictate state enforcement of either federal law much less the nature of state criminal laws.

Courtesy of the citizen initiative, we could be seeing the next major devolution of power away from the nation’s capital.

This is Common Sense. I’m Paul Jacob.

Categories
U.S. Constitution

Romney-Biden 2012?

The most interesting presidential election in U.S. history may have been the fourth, wherein Thomas Jefferson won. Sort of. How Jefferson got to be president may be relevant in this election, which is now so close that some wonder what would happen if there were an Electoral College stalemate, 269 votes for Romney and 269 for Obama. (Remember, it’s the electors who count, not the popular vote.)

In 1800, because of a constitutional glitch, Jefferson and his running mate Aaron Burr got the same number of electors, and the whole issue went to the House, which the Federalists still controlled, and it took a lot of negotiations and in-fighting to put Jefferson in office as the president.

The 12th Amendment settled the VP glitch, and cooked up a solution to the possibility of an Electoral College tie, as well. It’s never been used.

If, this Tuesday, the distribution of the popular vote forces the Electoral College into stalemate, the 12th Amendment would kick in, and the House would vote in a peculiar fashion (one vote per state), to select the President — Romney, considering the complexion of that body. Then the Senate would select the Vice President — Biden, considering the complexion of that body.

A wild finish, but it could get even wilder. In 1972, an elector jumped ship, voting for the Libertarian Party’s John Hospers/Tonie Nathan ticket (making Nathan the first woman to receive an electoral vote). Even against state laws forbidding it, a similar jump for Libertarian Gary Johnson or the Green Party’s Jill Stein — or Ron Paul — might complicate further. Or simplify.

Happy voting.

This is Common Sense. I’m Paul Jacob.