Tag: constitution

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Fifth Amendment rights U.S. Constitution

The Hill to Die On

due process, illegal immigration, deportation, Constitution, courts

“This is a hill they’re willing to die on,” Sen. Marsha Blackburn (R‑Tenn.) told a Fox News audience. The senator was dumbfounded by the Democrats’ support for returning Abrego Garcia, the man deported from Maryland to an El Salvadorean prison.

Former Trump campaign manager and advisor Kelly Anne Conway, substituting for regular host Sean Hannity, opened the program by showing a picture she explained was “Maryland Senator Chris Van Hollen staring affectionally into the eyes of admitted illegal immigrant and accused serial wife abuser and human trafficker with suspected gang ties, who was recently deported to his home country.”

Others claim Garcia is “a loving father and husband,” who “has never been charged with or convicted of a crime in the United States.” 

But whether a dangerous criminal or an innocent, hard-​working family man, Garcia’s status is hardly the issue. This is about whether our government must follow its written Constitution. 

In court filings, the Department of Justice acknowledged that Garcia’s deportation was an “oversight” and “an administrative error,” as it violated a previous court order not to send him back to El Salvador. 

A unanimous Supreme Court clarified that the administration is required “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

My question is: Why are Trump and Republicans willing to die on this hill? 

It could kill their future political chances. 

I believe in due process, and I vote. 

This is Common Sense. I’m Paul Jacob.

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Fifth Amendment rights Fourth Amendment rights national politics & policies

Time to Slap Grabby Hands

Civil Asset Forfeiture, theft, law enforcement, crime

Is the House of Representatives readying itself to do something to limit civil asset forfeiture initiated by federal agencies?

The legislation has emerged from the Judiciary Committee, so there is hope.

The Fifth Amendment Integrity Restoration Act (FAIR) would impose substantial limits on federal civil asset forfeiture — on the power of officers to grab someone’s cash or other belongings on the unsupported suspicion that it was involved in a crime.

Currently, this power to steal based on zero evidence and zero due process remains untrammeled. And forfeited funds thus grabbed can then be spent by the agencies that did the asset-grabbing. 

Victims must spend years in the courts to get their stuff back, if they ever do.

FAIR would require “clear and convincing evidence” of wrongdoing. It would also prohibit law-​enforcement agencies from being able to spend forfeited funds, eliminating a perverse incentive to rob people naïve enough to be carrying “too much” cash for whatever reason.

At National Review Online, Jill Jacobson says that the bill is “a step in the right direction” but doesn’t go far enough. Arguing on the premise of innocent until proven guilty, she insists “there is no reason why federal law enforcement should be seizing personal property from everyday citizens on tenuous suspicion.” 

Or even non-​tenuous suspicion, I would add, for not everyone strongly suspected of doing wrong can be proven to have done wrong. And citizens caught on the wrong end of a government official’s steely gaze should not be regarded as a public resource. 

The reform isn’t finished until civil asset forfeiture is abolished altogether.

This is Common Sense. I’m Paul Jacob.

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election law general freedom initiative, referendum, and recall

Politicians Revolt Against Voters

Arkansas, citizen's initiative, voting, Democracy

“[C]urrently, in the state of Arkansas, out-​of-​state special interest groups that come to our state can try to change our laws and change our constitution,” Rep. Kendon Underwood, the Republican sponsor of House Bill 1419, testified “by just getting signatures from 15 counties.”

In the over 100-​year history of citizen-​initiated ballot measures in Arkansas, no initiative has ever qualified with signatures from only 15 counties. Zero. Moreover, to pass a statutory or constitutional initiative requires much more than merely gathering petition signatures; it mandates a majority vote of the people of Arkansas.

As for “out-​of-​state” special interests, the ballot issues referred by legislators last election received more such funding than the lone citizen-​initiated measure. 

There’s more to unpack. 

“Changing” the state constitution is too easy? Well, HB-​1419 hikes up the constitutional requirement that citizen petitions qualify in “at least 15 counties” to now 50 counties out of Arkansas’s 75 counties — a more than 300 percent increase. 

You read that correctly. Mr. Underwood’s proposes to amend the constitution with a simple statute. Textbook unconstitutionality. Yet, that statute has now passed both houses of the legislature and Governor Sarah Huckabee Sanders says she will sign it.

In both 2020 and 2022, legislators placed constitutional amendments on the ballot to entice Arkansans to vote away their initiative and referendum power. Both times Natural State voters said no. One of the provisions defeated in 2020 would have increased the number of counties in which petitions must reach a threshold to 45.

After voters rebuffed legislators on those amendments, the politicians now decide to weasel their way around the constitutional restraint. 

My, they’re real politicians now!

Legislators also declared “an emergency” so HB-​1419 will immediately go into effect, because there’s an urgent need “to enhance and protect Arkansans’ voice in the ballot initiative and referendum process.” 

Why not tell the Big Lie? They’ve told every other size.

This is Common Sense. I’m Paul Jacob.

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general freedom media and media people U.S. Constitution

We’ll Keep It

Constitution, news media, Trump

An answer is warranted. 

When a former president of these United States asks a question of such magnitude, as Donald J. Trump did last week on Truth Social, how can we not respond?

“So, with the revelation of MASSIVE & WIDESPREAD FRAUD & DECEPTION in working closely with Big Tech Companies, the DNC, & the Democrat Party,” Mr. Trump inquired, “do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION?”

Trump is, presumably, referring to Elon Musk’s recent release of information about FBI communications with Twitter during the 2020 campaign, with the Feds suggesting that stories about the Hunter Biden laptop were likely Russian disinformation — even though the FBI knew at the time that that it was Hunter’s laptop. For the FBI to work to discourage media platforms from providing such information to the public is deceptive and wrong. It should be investigated and, depending on the evidence, prosecuted to the full extent of the law. 

Such collusion is even more destructive of our democratic system when done with partisan political motives. Which may now be SOP at the Bureau. 

So, let’s answer Mr. Trump’s questions. “No,” per declaring him the winner and sending President Biden packing. And a no-​go on a new election. Of course, there is one in 2024, and Trump is a declared candidate.

Yes, the news media is largely dishonest, drunk with their power and deluded into thinking they should keep information from us if it might make us vote contrary to their desires. Moreover, the Deep State is actively colluding with them (and vice-​versa) to warp public opinion. 

Trump argues that this new information “allows for the termination of all rules, regulations and articles, even those found in the Constitution.” He’s dangerously mistaken.

Who would “terminate” these laws and constitutional provisions? His dear friends in Congress, The White House, the FBI and DOJ? Unelected judges — who’ve already ruled against his campaign? A mob, pray tell? 

No, thanks. That Constitution? We’ll keep it. 

This is Common Sense. I’m Paul Jacob. 

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crime and punishment national politics & policies Second Amendment rights

A Mad Cycle

gun free zone, 2nd Amendment, guns, gun control. US Constitution

The cycle runs like this:

  1. Some (usually young) man shoots a number of people in a gun-​free zone;
  2. Media people whip their viewers into a frenzy about the need for “common sense gun control laws” or a complete gun ban;
  3. Politicians scurry to “do something.”

Despite the fact that the Uvalde and Indianapolis mall shootings suggest contrary policies, Congress has just produced a law that actually takes a step … in the wrong direction, adding more penalties, for example, on top of existing penalties for convicted felons caught in possession of firearms.*

“Contrary to what you may have read or heard, the story of how that happened is not an inspiring example of bipartisan cooperation to protect public safety,” writes Jacob Sullum in Reason. “It is a dispiriting illustration of how the worst instincts of both major parties combine to produce policies that are neither just nor sensible.”

The deal gave R’s tougher sentences and D’s more gun control, and “both got to pretend they were doing something to prevent mass shootings.”

Not addressed? The insane policy, originally pushed by one Senator Joe Biden, of “gun-​free zones.” As anyone with common sense knows, bad guys who want to make a statement by killing lots of people, prefer gun-​free zones to other areas.

A more subtle aspect of the cycle is how the topic of gun legislation, as handled by politicians and major media propagandists, itself elicits broken men to break the law and kill, kill, kill.

What if the best way to break the cycle would be to accept the Second Amendment as a given and spurn every demagogue in Congress and the media who persists on defying the Constitution?

This is Common Sense. I’m Paul Jacob.

* Neither the Uvalde nor the Indianapolis shooter were convicted felons.

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judiciary national politics & policies too much government

Emergency Effrontery

Joe Biden, Covid, Vaccines

The ruling was hardly shocking. Most constitutional scholars expected it, I think. That being said, the whole business is … shocking.

I refer to the 5th Circuit Court of Appeals coming down hard against the Biden Administration’s vaccine mandate.

Say those words, “vaccine mandate,” reflecting on how it was “enacted” — not by act of Congress — and the Occupational Safety and Health Administration’s tortured justification for forcing private companies seems doomed.

At least if the Constitution retains any of its meaning.

“The stay,” explains Reason editor Jacob Sullum, “which the court issued on Friday evening, says OSHA shall ‘take no steps to implement or enforce the Mandate until further court order.’ It is officially a preliminary pause ‘pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.’ But the court left little doubt that it would grant those motions, saying ‘petitioners’ challenges to the Mandate show a great likelihood of success on the merits.’”

The administration’s desperate shoehorning of OSHA’s statutory ability to concoct an “emergency temporary standard” (ETS) is an act of effrontery. 

Sullum, in his detailed coverage, shows just how extraordinary and inapt the reliance upon the ETS is. The COVID-​19 crisis cannot justify the mandate through the legal mechanism chosen. It is fairly obvious that, as the court put it, Biden’s decree “grossly exceeds OSHA’s statutory authority.”

Sullum quotes another judge’s concurring opinion to the effect that even a congressionally legislated mandate would be controversial, constitutionally.

But breathe easy: Nancy Pelosi’s and Chuck Schumer’s Congress has no interest in creating a rational and constitutional response to the crisis.

And our Congress? Well, it doesn’t exist.

This is Common Sense. I’m Paul Jacob.

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national politics & policies subsidy

Maxine and Nancy Sure Need Joe

Pelosi, Biden, Congress, Constitution, rent, moratorium

“We thought that the White House was in charge,” explained Rep. Maxine Waters (D‑Calif.), after the Democratic majority had failed to act on a key pandemic subsidy.

 “Action is needed,” implored a panicky Speaker Pelosi in a statement also signed by the Democratic House leadership, “and it must come from the Administration.”

“The Centers for Disease Control and Prevention-​imposed moratorium [on home evictions] lapsed Sunday — five weeks after the Biden administration said it would extend the measure ‘one final month’ to July 31 and four weeks after the Supreme Court let the ban stand but signaled any new extensions would require Congress to act,” The Washington Post explained.

“But Congress didn’t act.”

Then, yesterday, President Biden responded to exhortations from his party’s left flank by announcing the CDC would extend the federal moratorium regardless of the unmet constitutional requirement.

“The bulk of the constitutional scholarship,” the president acknowledged, “says that it’s not likely to pass constitutional muster.” 

You don’t need to be a constitutional scholar to conclude that this sort of thing is wholly Pelosi’s bailiwick. But forget the Constitution, spending is the supreme law.

Also forgotten are the landlords devastated by the moratorium. They likewise have bills to pay. 

“Congress set aside nearly $50 billion to help families … pay the back rent they owe and avoid eviction,” National Public Radio reported. “But that money flowed to states and counties, which … have managed to get just a small fraction of the money to the people who need it.”

While the political “need” for bailouts directly resulted from government action — the pandemic lockdowns — blame for the current unconstitutional mess lies squarely with the Democratic Congress. 

This is Common Sense. I’m Paul Jacob.

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judiciary national politics & policies

Constitutionalize the Court

Supreme Court, court packing

“To undo the damage Republicans did by stealing multiple Supreme Court seats,” argues Demand Justice, “we should immediately add seats to the Supreme Court and appoint justices who will restore balance.”

“Stealing”? That’s hyperbolic, to say the least. The Senate used its constitutional prerogative by refusing to approve President Obama’s nomination of Merrick Garland in 2016 and four years later by swiftly voting to confirm Justice Amy Coney Barrett.

The group’s proposal? Add four new justices. 

Facing a 3 to 6 justice deficit (Dem-​nominated vs. GOP-​nominated), many Democrats and groups like this one have settled on adding four.

For “balance.” 

Which means, to them, going from the minority to the majority.

And you thought Democrats weren’t good at math!

Last week, President Biden announced a commission to look into this “court packing” notion, as well as other possible changes to the High Court, including term limits. 

“My colleagues and I need not wait for the findings of a commission,” offered Rep. Mondaire Jones (D‑N.Y.). It is “obvious,” he added, “we must expand the Supreme Court, before it’s too late.”

That is, before the next election or a resignation or tragic death of a single D‑Senator might flip the Senate to Republican control. 

“Adding seats is straight-​forward and easy,” reminds Demand Justice, correctly explaining that the Constitution specifies no number, “so Congress can change it at any time.”

Yes, even with the slimmest of congressional majorities Democrats could completely re-​make the High Court. Without a single Republican vote. 

A partisan takeover of the Supreme Court is way too “easy” — until we place the number of justices firmly in the Constitution, away from poisonous partisan politicians. 

It’s the most urgent reform of all.

This is Common Sense. I’m Paul Jacob.

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national politics & policies partisanship

Our Rules or Theirs?

Last Thursday, President Biden signaled “that he would be willing to consider supporting the elimination of the filibuster,” CBS News reported following his first news conference, “if Senate Republicans use it to block Democratic legislative priorities from receiving a full vote on the Senate floor.”

“If”? Stopping the majority party from taking its legislation to a floor vote without a 60-​vote supermajority to end debate is what the filibuster does.  

The president, a Democrat, is saying the filibuster is OK … as long as Republicans don’t use it.

You will of course not be shocked to learn that Biden has been a longtime, adamant supporter of the filibuster. In 2005, he gave an impassioned defense, arguing, “At its core, the filibuster is not about stopping a nominee or a bill — it’s about compromise and moderation.”

Biden called the GOP attack then a “fundamental power grab” and said his oration “may be one of the most important speeches for historical purposes that I will have given in the 32 years since I have been in the Senate.”

Yet, the filibuster is not in the Constitution. 

It is simply a Senate rule. And the majority party in the Senate can thereby fiddle with it. 

I’m not so much wed to the filibuster as I am wed to the idea that the rules with which Washington insiders wield power serve us and not just themselves. 

The filibuster should be made official in law or Constitution precisely so politicians cannot change it on whim or passion. 

Or it should be ended. But not before one party (or both) actually campaigns to end it, so that the American people can weigh in. Because these must be our rules if it is to be our government. 

This is Common Sense. I’m Paul Jacob.

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ideological culture national politics & policies

Equal Wrongs

ERA, Equal Rights Amendment, ratify, Constitution,

Back in the 1970s, the late Phyllis Schlafly charged that, if the Equal Rights Amendment (ERA) were ratified, women would be subject to the military draft. 

Funny thing, though — the ERA was not ratified, yet any return to the draft means our daughters would be forced into combat just like our sons. 

The 14th Amendment already requires equal protection of the laws.

Congress proposed the amendment in 1972 with a seven-​year period for ratification by the necessary 38 states. Even with an extension, the ERA fell three states short … well, make that eight, since five states* rescinded their initial ratifications. 

“One thing we are going to need to do right away,” declared Senate Democratic leader Dick Saslaw, “is pass the Equal Rights Amendment in Virginia.”

But it’s back, sorta. In recent years, Nevada and Illinois have ratified the timed-​out amendment. And with Democrats taking control of both chambers of the Virginia Legislature in this year’s election, the state could now become the 38th to ratify. 

Not so fast. Even Supreme Court justice and progressive action-​hero Ruth Bader Ginsberg has made it clear that the amendment has expired, that the process must begin anew. No amendment should be bum-​rushed into the Constitution.

Though some conservatives warn the ERA may undermine women’s rights. I support the language of the amendment as it plainly reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”**

Possible wrinkle: can anyone read plainly?

This is Common Sense. I’m Paul Jacob.

* Idaho, Kentucky, Nebraska, South Dakota, and Tennessee.

** There were two boilerplate clauses, in addition: Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.

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ERA, Equal Rights Amendment, ratify, Constitution,