Category: U.S. Constitution

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crime and punishment national politics & policies U.S. Constitution

The Act That Can’t Cut It

Trump, raid

During Donald John Trump’s time at 1600 Pennsylvania Avenue, he expressed his displeasure with some documents by tearing them up.

Which is illegal, as CNN takes pains to make clear. His underlings would then scoop up the shreds of paper and tape them together. 

Keyword: farcical.

This comedy might be funny to watch in a sequel to, say, In the Loop, the 2009 political satire. But it’s not so funny in the current iteration, with the FBI’s raid on Trump’s Mar-a-Lago mansion.

The search for documents “illegally removed from the White House” has seems an obviously political ploy. Since Trump was legally allowed to de-classify documents, his taking of allegedly still-classified docs seem, well, a rather trivial matter.

Keyword: petty.

Right-leaning media and the left-ensconced media talk about all this very differently, of course, and I confess to finding the former a little more convincing than the latter. Focusing on documentation seems like an excuse to find some petty thing to disqualify Trump from running again in 2024.

While Trump not running again might be the best thing for the GOP, and America, that’s not really relevant: Republicans are stuck with the one champion, with few decent alternatives, and Democrats are in worse shape. Which is why they fret about Trump.

Using the Presidential Records Act of 1978 as a disqualifier for a Grover Clevelandesque re-run of a defeated president is on everybody’s lips. But there’s a problem: how could it possibly pass constitutional muster? The Constitution specifies the qualifications for the job. Congress cannot add or subtract to those qualifications by law.

That was the argument used to disqualify term limits in U.S. Term Limits v. Thornton: qualifications for candidates were specified in the Constitution. Neither states nor Congress could change it.

If Democrats seek to breach this principle . . . then let’s look at term limits again.

Keywords: do it.

This is Common Sense. I’m Paul Jacob.

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Accountability U.S. Constitution

You Could Look It Up

IJ, Institute for Justice, GPA

Your constitutional rights have been violated. Now what?

One thing you can do is find out exactly where you stand with respect to what the Institute for Justice calls “clearly established law.” IJ has created a new research tool, the Constitutional GPA, to help lawyers and others identify relevant legal decisions.

The tool is designed to help users make government accountable despite the many confusing barriers to accountability. The “GPA” in the name refers both to “grade point average” and the question that is part of the tool’s graphic design: “Is your Government Preventing Accountability?”

Doctrines of qualified immunity and other special rules often prevent government officials who violate your rights from being held responsible unless courts have ruled otherwise with respect to specific rights-violating actions. Exactly what the law permits or proscribes can vary widely in different jurisdictions.

The interactive tool grades state governments and federal courts of appeal based on how they treat claims of immunity and helps users “identify the clearly established law necessary to defeat qualified immunity.”

IJ gives the example of a government employee’s unjustified search of your car supposing this takes place in Nevada. Answering a few simple questions enables one to search the Constitutional GPA database of hundreds of cases to find about a dozen pertinent legal decisions.

So if you find yourself on the wrongest of wrong ends of the State, watch the Institute’s YouTube video on how to use the new tool and try it out at the ij.org/gpa web page.

This is Common Sense. I’m Paul Jacob.

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ideological culture judiciary national politics & policies U.S. Constitution

Packing Unpacked

Supreme Court, Justice, court packing

The “court packing” notion that progressives itch to implement has obvious flaws — which have been addressed (but not settled) in the recent report of the Presidential Commission on the Supreme Court of the United States, initiated by the Biden Administration last April. 

The report, just out, did not give progressives what they want. “Opponents contend that expanding — or ‘packing’ — the Court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the Court. The Commission takes no position on the validity or strength of these claims.” 

Not a few Democrats wanted the Commission to take a very negative position on those claims. Democrats currently maintain a shaky hold on power in the Legislative and Executive branches. Had the Commission given them the green-light to push progressives onto the Court — to overwhelm the current “conservative” majority — they might have consolidated power.

The report is inconvenient for that political move — as is Associate Justice Stephen Breyer’s opposition. Damon Root, at Reason, summarizes Breyer’s case: “It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance.” Breyer fears that court-packing would undermine Court authority, and liberalism itself would suffer.

By “liberalism” I take Breyer to mean the order that is defined by the Constitution itself: separation of powers, basic rights, citizen control of government. And there is a way to save this kind of “liberalism”: fix the size of the Supreme Court in the Constitution.

The very opposite of court packing.

This is Common Sense. I’m Paul Jacob.

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term limits U.S. Constitution

Happy Term Limits Day!

term limits

Saturday is Term Limits Day. 

Boy, this holiday season really sneaked up on me. 

No excuse, though, because Term Limits Day falls on February 27th every year. On that date in 1951, the 22nd Amendment to the Constitution was ratified, limiting the president to two terms in office. 

Call it the constitutionalization of the small-r republican example George Washington set so well by voluntarily stepping down after two terms as chief executive. That “tradition” lasted for nearly 150 years . . . until FDR sought and won a third term in 1940.

In addition to presidential limits, tomorrow let’s also cheer term limits on 15 state legislatures (including big states such as California, Florida, Ohio, Michigan), and those covering 36 governors as well as thousands of local elected officials, including in nine of the nation’s ten largest cities.

Of course, while we celebrate Term Limits Day — in this pandemic, mostly on social media — let’s remember where mandatory rotation out of elected office does not exist, yet is most desperately needed: Congress.

Since career politicians aren’t going to term-limit themselves, U.S. Term Limits has launched a “national effort to bypass Congress and put term limits on House and Senate through the Term Limits Convention.” The convention requires 34 state legislatures to take action and that in turn requires us to act at the grassroots in our states. 

Already there is impressive movement. In the last week, resolutions for a Term Limits Convention have passed through key committees and entire chambers in Arizona, Georgia, and North Dakota. Much more is in the pipeline.

Term Limits Day, tomorrow, makes a great day for a contribution to the term limits cause. But there’s no time better than the present.

This is Common Sense. I’m Paul Jacob.

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Common Sense crime and punishment general freedom ideological culture media and media people U.S. Constitution

The Mobs Attacked and Defended

Portland, riots, protests, Ted Wheeler

It’s “mobocracy” — the riots in major cities around the nation, but especially in Portland, Oregon, where the president sent federal agents. Local police had stood back for weeks as Democratic politicians — such as Joe Biden — referred to the rioters as “peaceful protesters.” Even as the mobs lit fires in the streets, defaced property, and attempted to break into government buildings.

Buck Sexton, writing at The Hill, makes the obvious linkage between the “anarchists” and the “Democratic” Party. 

But Sexton doesn’t really answer the key questions: “Why are anarchists terrorizing Portland? What was the real purpose of the Seattle ‘Capital Hill Autonomous Zone’? Why were ‘Occupy City Hall’ protesters allowed to fight with police in lower Manhattan for a month, until officers cleared out their encampment on Wednesday?” Sexton rejects the official reasons give by the movements’ apparent leaders, but doesn’t go very far beyond Democratic Party attempts to leverage the riots.

Which may at least offer amusement. “The reason I am here tonight is to stand with you,” Portland Mayor Ted Wheeler assured the mob as he put on goggles. “So if they’re launching the tear gas against you, they’re launching the tear gas against me.” But that same night, his security detail “scuffled” with “protesters” and his own police department threatened to use tear gas and impact weapons on the incendiary horde.

Is this really about legitimate protest, as Biden insists?

Fighting federal fascism, as Democrats and many others insist?

Americans are all-in for criminal justice reform and the right to protest. Many, me included, have peacefully taken to the streets in recent weeks.

But there is nothing peaceful about assault, arson, property destruction.

And Democrats who aim to use the fracas to beat Trump in November may find that ‘playing with fire’ . . . burns. 

This is Common Sense. I’m Paul Jacob.

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general freedom media and media people U.S. Constitution

The Rates that Matter

fear, Covid, Coronavirus, epidemic, pandemic, propaganda,

Millions more Americans have been infected with SARS-CoV-2 than are considered “confirmed cases,”* at rates ranging from 6/1 (Connecticut, early May) to 24/1 (Missouri, late April), making the fatality rate of COVID-19 much lower than feared.

Unfortunately, we cannot trust our news sources to be forthright about this.

The “death count” had been the pandemic’s repeated headline for months, Dr. Ron Paul noted yesterday, “all of a sudden early in June the mainstream media did a George Orwell and lectured us that it is all about ‘cases’ and has always been all about ‘cases.’ Death, and especially infection fatality rate, were irrelevant.”

There’s a reason for this re-focus. Since peaking in April, deaths, you see, “had decreased by 90 percent and were continuing to crash. That was not terrifying enough so the media pretended this good news did not exist.”

And the case number increases do look ominous, despite being almost innocuous: “This is not rocket science: the more people you test the more ‘cases’ you discover.”

And that is not the only change of spin regarding the pandemic, as Jeffrey Tucker dramatized on Twitter:

“Flatten the curve!”
“What does that do?”
“Pushes infections to the future”
3 months later
“There are new infections!”
“What should we do?”
“Flatten the curve!”

At Mr. Tucker’s stomping grounds, the American Institute for Economic Research, Gregory van Kipnis wrote last month that the “most frightening aspect of the coronavirus-19 (COVID-19) epidemic in the US is that it brought about exaggeratedly heightened fear of death.”

We have something to fear from the virus and its attack upon the respiratory system, but we have more to fear from fear itself.

That staple of propagandistic media.

This is Common Sense. I’m Paul Jacob.

*  A confirmed case is of a patient who has seen a doctor for symptoms of the disease and has tested positive with the diagnosis seconded and logged by scientists associated with a national health agency.

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general freedom U.S. Constitution

Thoughts in Slo-Mo

car, accident,

“Oh my God,” my wife gasped after that eerie instant of calm when things stopped. She told me to call 911 just as I was pressing “9.”

We had been navigating the less-than-usually-clogged interstates up the East Coast when suddenly dirt and debris swept across the asphalt. As we quickly stopped, a small vehicle flipped back onto Interstate-84, rolling over twice, throwing its occupant — a 21-year-old woman — out of the car and onto the road some 30 feet in front of us.

As another man and I got to her, we saw she was breathing. Thankfully, a nurse came forward from the traffic, which would be stopped for hours. Within minutes, emergency personnel were on the scene.

The woman was airlifted to a hospital; she later died. 

Those slow-motion seconds of the accident stay with me, along with the surrealism of the aftermath, standing on a stopped superhighway — helpless — feeling amazingly connected to someone’s precious life. 

And death.

Back on the road, after giving a statement to police, my wife wondered aloud if, what with the current pandemic, the young woman’s parents would even be able to get into the hospital to see her.

Throughout this coronavirus crisis we have heard stories of people dying all alone because of policies designed to “keep us safe” — by keeping relatives and even spouses out. 

We like safety, but if either my wife or I lies dying in a hospital, regardless of the COVID-19 risk, each of us would wish to be with the other.

It’s “till death do us part,” not “till quarantine do us part.”

This is Common Sense. I’m Paul Jacob.

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ballot access U.S. Constitution

Pandemic Petitioning?

closed, electronic signature, voting, elections, petitions, citizen,

“Our political system, our way of life, our Constitution cannot be let go,” the Libertarian Party’s Nicholas Sarwark argued on MSNBC’s Morning Joe, “just because there is a terrible illness spreading through the country.”

His concern? Libertarians — and Greens and other parties or independent candidates — must still gather hundreds of thousands of voter signatures to put their candidates on state ballots this November. 

And so, too, must citizen-initiated ballot measures.

But who wants to petition into a deadly pandemic? Supposing you carefully made a grocery run, would you stop to chat with petitioners and grab their pen to sign? 

“That would be a public health nightmare,” explained Sarwark, “to force petitioners to go out with clipboards and gather signatures.” 

Libertarians are asking governors “to suspend these requirements that would endanger the public.” 

Cogent points, but I’m not so sure governors have lawful power to order candidates or initiatives onto the ballot. 

Much less the inclination.

Legislatures could act . . . but why help competing candidates gain access to the ballot? 

And as for green-lighting issues that haven’t gone through their sausage-maker? 

Puh-leeze.

Back in 2010, the Utah Supreme Court ruled that electronic signatures were legally valid. Rather than facilitate that process, the state legislature quickly banned it. 

But it is the obvious solution: allow voters to sign petitions online for candidates or ballot initiatives.* 

“The law has long recognized electronic signatures as legally effective where hand-signed signatures are required,” contends Barry Statford in a law review article. “As early as 1869, the New Hampshire Supreme Court acknowledged the validity of a contract accepted by telegraph.”

The courts should mandate state acceptance of electronic signatures. 

Let’s sue.

This is Common Sense. I’m Paul Jacob.

* Voters in Boulder, Colorado, passed an initiative allowing electronic signatures in 2018.  

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closed, electronic signature, voting, elections, petitions, citizen,

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crime and punishment property rights U.S. Constitution

Injustice Blocked

asset forfeiture, theft, police, corruption,

Civil asset forfeiture is one of those government practices that good people, when informed of it, often express, at first, incredulity. How can something like that exist in these United States?!?

Good question.

One reason seems to be that very incredulity. Normal Americans trust their government not to be evil. When shown that it regularly engages in actual highway robbery, then denial — ‘this cannot be happening.’

But it is.

Another reason it exists? It is so profitable. 

For those in government, anyway. They get to fill their department coffers without having to ask for tax hikes. They — and by ‘they’ I mean ‘the police’ and government attorneys at state and local levels — just take the wealth. 

Indeed, police routinely “keep whatever they can grab off anybody they arrest, claiming it’s all proceeds or property connected to criminal activities,” writes Scott Shackford at Reason, “and using it to line their own pockets. This incentivizes police to look for people who have assets that can be seized.” 

In South Carolina, Shackford reports, police agencies “across the state had seized more than $17 million in assets across three years. In one-fifth of the cases, nobody was charged or even arrested for a crime.”

Fortunately, there is good news. “Circuit Judge Steven H. John has ruled that the South Carolina’s civil asset forfeiture regulations violate the Fifth, Eighth, and Fourteenth Amendment rights of the citizens.” 

Unfortunately, the fight against this evil practice is far from over. 

But maybe the judge’s ruling will inspire citizens to petition their government and place politicians’ greed into check.

And might not this judge inspire other judges around the country?

This is Common Sense. I’m Paul Jacob.

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asset forfeiture, theft, police, corruption,

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national politics & policies Popular responsibility U.S. Constitution

Congress’s King

King of Diamonds, King Donald, Donald Trump, trade, tariff, power,

Politics today reveals a troubling dialectic.

Thesis: President Trump boasts that he is going to unilaterally “do something” as if he were Emperor, not President. 

Antithesis: Then comes pushback from political opponents and the media, castigating our current commander-in-chief for imagining himself a lawless dictator. 

Synthesis: This is soon followed, however, by the discovery that the president does have such awesome power. 

Legally.

In our constitutional system, can a president can just wake up one day and slap tariffs on imports? Well, numbskulls in Congress passed a law handing the president that specific power.

When President Trump declared an emergency to re-direct money, appropriated by Congress for different purposes, toward building the Wall, many argued that the president cannot usurp Congress’s undisputed power of the purse. True, but irrelevant. Congress had indeed delegated all these undefined and largely unchecked “emergency” powers to the prez.

Last week, as the trade war with China was coming to a boil, Mr. Trump tweeted, “Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing . . . your companies HOME and making your products in the USA.”*

I thought, “Does Trump really think he has the legal authority to order all U.S. businesses to leave China?”

Yes . . . and apparently he does. It’s called The International Emergency Economic Powers Act.

“One of the enduring phenomena of the Trump era,” University of Texas law professor Stephen Vladeck told CNN, “is going to be the list of statutes that give far too much power to the President, but that many didn’t used to worry about — assuming there’d be political safeguards.”

Or that “the right person” would always be in office.

This is Common Sense. I’m Paul Jacob.

* Note that Mr. Trump did not order the companies to leave, but did assert his “absolute right” to do so.

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King of Diamonds, King Donald, Donald Trump, trade, tariff, power,

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