Category: U.S. Constitution

Categories
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.