U.S. Constitution

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Dead Document?

Tuesday, December 2nd, 2014

Could it be? We do not live under the Constitution of the United States. The document has been a dead letter for a century, maybe longer.

Ours is a Post-Constitutional America.

Surely, there have been great moments of executive usurpation.

Andrew Jackson, in defiance of the Supreme Court, and against all normal principles of law and justice, removed the Cherokee from their agrarian holdings in Georgia and contiguous southeastern United States, sending them marching to Oklahoma. The Supreme Court said his order was unconstitutional. Jackson’s response? Not really much different from “nyah nyah, nyah nyah, nyah nyah.”

Much of the Civil War and Reconstruction was undertaken on the shakiest of constitutional grounds. And then came the “great progressive” presidents.

Republican Teddy Roosevelt and Democrat Woodrow Wilson defied the explicit intent of the Constitution’s authors — as written in The Federalist as well as in the state houses that adopted the new compact. Both presidents construed the Constitution as authorizing the federal government to do pretty much darn near anything not explicitly forbidden in the document.

That was not the original understanding.

And then there is war. The U.S. Congress hasn’t declared an explicit war since World War II. But we’ve been in a never-ending string of wars.

With Obama, the post-constitutional prevarication has reached new . . . effrontery. The current president says that, though he had previously declared the “Iraq War” a done deal, over, finito, he now says his new attacks upon ISIS are constitutionally justified by 2002’s Authorization for Use of Military Force against Iraq.

“Post-constitutional”? It means our leaders are liars, beyond the law.

This is Common Sense. I’m Paul Jacob.

Principled, and Un-

Tuesday, October 7th, 2014

Can one “rise above principle”?

Aren’t most (all?) who think they “rise above principle” actually sinking below it?

Economist David Henderson called our attention to this notion in reference to legal theorist Richard Epstein’s call for a war against ISIS. On AntiWar.com, he challenged Epstein’s support for the president’s war on ISIS on constitutional grounds, and wondered why constitutional scholar Epstein hadn’t addressed this concern.

Then Epstein addressed it — using that curious phrase “rise above principle.”

Henderson’s response? Characteristically astute:

In which times of crisis do you need to “rise above principle?” What are the criteria for doing so? If you don’t specify criteria, then I think you’re saying that anything goes. If you do specify criteria, don’t those criteria amount to a principle? In that latter case, are you really rising above principle?

It’s not just a matter of constitutionality, though. Just war requires coherent goals. And a debate and vote in Congress over going to war against ISIS could help establish those goals.

Clearly, the continuing interventions in the Islamic East have suffered from massive confusion. A year ago, President Obama called for regime change in Syria and wanted to bomb government forces; today, we are bombing ISIS, the main opposition to that same government.

Sinking below principle on matters of warfare is the least excusable abandonment of law. It’s the suppression of hasty warfare — individual, group, or national — upon which the rule of law rests. Upon which civilization rests.

There’s no “rising above.” There’s no acceptable abandonment. There is only sticking to principle upon the issues that matter most.

This is Common Sense. I’m Paul Jacob.

Thieves With Badges

Wednesday, September 10th, 2014

Civil forfeiture is the government practice of taking property from citizens without due process, but while pretending that it’s all above-board. When police say they suspect a crime, they can impound property associated with that crime. “Civil forfeiture” is the legal legerdemain: instead of suing the owner, the government sues (get this) the property itself.

And, because of this trickery, burden of proof is inverted: victims must prove their innocence and their right to the impounded property.

Generally, governments keep it. Some police departments are “rolling in the dough” they get from impounding property.

This has been known for some time; I’ve written about it before. But now the Washington Post has finally taken notice … and unearthed a new element to the story.

“Behind the rise in seizures is a little-known cottage industry of private police-training firms that teach the techniques of ‘highway interdiction’ to departments across the country,” the Post’s report relates. There’s even a private intelligence network, the Black Asphalt Electronic Networking & Notification System, through which police “share detailed reports about American motorists — criminals and the innocent alike — including their Social Security numbers, addresses and identifying tattoos, as well as hunches about which drivers to stop.”

Participating police officers compete to steal more and more booty from drivers and their passengers.

Yes, it is stealing. It is only nominally “legal.”

Unfortunately, it is only one practice among many that have turned local police departments into the moral equivalent of gangland robbers.

If you say you want limited government, this is an issue ripe for protest. And lobbying for reform. And citizen initiatives.

For starters.

This is Common Sense. I’m Paul Jacob.

The Right to Remain Recording

Friday, August 15th, 2014

Every once in a while, a judge makes a judgment so sensible, it’s as if he had this Common  Sense column in mind.

U.S. Magistrate Judge Edmund Brennan has determined that the same right to video-record police in public also applies within a would-be videographer’s home.

The case involves a 2011 search of the home of Mary Crago, which was subject to search without warrant under the terms of her probation. Defendant Kenneth Leonard deleted a video recording she made of the search, telling her that recording it was prohibited. In court Leonard has contended that no right to video-record police officers has been established for persons on probation or in a non-public setting.

To this, Judge Brennan responds that if a plaintiff has “a clearly established constitutional right to record from a public place where the plaintiff has the lawful right to be, a plaintiff surely has such a right in his or her home.”

Brennan sees no “no principled basis” for the assumption that we have a protected right to record officers performing their duties in public that “does not extend to those performed in a private residence. The public’s interest in ensuring that police officers … do not abuse [their] authority … does not cease once they enter the private residence of a citizen.”

If anything, it is even more urgent to protect a citizen’s right to document proceedings when an officer’s actions are shielded from public view — from other witnesses.

But of course. It’s just Common Sense, isn’t it?

I’m Paul Jacob.

Abridge Too Far

Wednesday, May 7th, 2014

Sick and tired of “too much money” in politics? Worried the average citizen’s voice is being drowned out?

Thirty-six Democratic U.S. Senators have just the thing: a re-write of the First Amendment.

They’ve co-sponsored a proposed amendment to the U.S. Constitution: Senate Joint Resolution 19.

“We would give the power back to the Congress,” says chief sponsor Sen. Tom Udall (D-NM).

Wait. That’s amending reality. Congress never had any such power. The instructions in the Constitution are quite clear: “Congress shall make no law … abridging the freedom of speech, or of the press …”

These 36 solons reverse course with the wording

… Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on —

  1. the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and
  2. the amount of funds that may be spent by, in support of, or in opposition to such candidates.

Our brand new constitution would not contain a single word of restraint. Instead, powerful congressional incumbents would wield complete and total control over all money to be raised or spent by their competitors.

And note: they already enjoy a tremendous name recognition advantage over their challengers. What happens when incumbents limit campaign spending too low for challengers to compete?

Its negation of rights is so sweeping that the amendment actually states, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”

No worries for the New York Times, then. But just how much of the First Amendment do the rest of us get to keep?

This is Common Sense. I’m Paul Jacob.

Spring’s Decisions

Wednesday, April 23rd, 2014

Spring is in the air, and old men’s hearts turn to thoughts of . . . law.

Yes, Supreme Court Decision Season has begun. Yesterday, two decisions were handed down.

In Schuette v. BAMN, Justice Kennedy “announced” the decision to reverse a previous court’s determination overruling a citizen-initiated constitutional amendment in Michigan. Kennedy (joined by Alito and Chief Justice Roberts) found that the people could prohibit race-based affirmative action policies in their state. After all, the Supreme Court had merely allowed such practices in previous cases. It did not require them.

This shouldn’t be controversial — indeed, it was decided 6-2 with liberal Justice Stephen Breyer joining conservatives. Still, Justice Sotomayor read her dissent from the bench, saying “without checks, democratically approved legislation can oppress minority groups.”

The democratically approved legislation in this case prohibited discrimination on the grounds of race — hardly a source of oppression for anyone. Ilya Somin’s prediction of this decision last October is worth contrasting to Sotomayor’s worry: “In no conceivable world can the Equal Protection Clause — the constitutional provision that bans racial discrimination — prohibit a state law that bans racial discrimination.”

Justice Scalia (joined by Clarence Thomas) used his concurring opinion to make some sense of the constitutional status of race in American higher education with “It has come to this.” It’s quite a read.

But there was no joining of Thomas and Scalia in Navarette v. California. Thomas wrote the opinion, deciding that a traffic stop drug bust was okee-dokee, even if initiated by a 911 caller complaining of a truck-driver’s alleged bad driving. Scalia called the decision “a freedom-destroying cocktail.”

So much for the lock-step left-right divide on the High Court.

This is Common Sense. I’m Paul Jacob.

Fifth Dimension Feds

Thursday, March 6th, 2014

I like the Fifth Amendment.

I took it myself in 2007 when Oklahoma Attorney General Drew Edmondson was witch-hunting with his grand jury. My attorney advised that I had more to fear from innocently misstating something and being vindictively charged with perjury than from the ridiculous indictments the AG would file against the “Oklahoma 3” — and then dismiss.

The Fifth Amendment protects the individual from government fishing expeditions, from browbeating by big, bad prosecutors — which includes congressional committees acting as such.

I don’t want to diminish our Fifth Amendment rights in any way, for any citizen.

Even when Citizen Lois Lerner asserts her Fifth Amendment privilege while the acting director of the IRS’s Exempt Organizations Division. And yes, even in yesterday’s repeat performance — having since retired with a pension — she still avoids congressional questions about official actions that appear to violate fundamental civil rights.

The House committee may charge Lerner with contempt (I already do). Admittedly, without her testimony, we may never know the full extent of the official campaign against certain political groups.

But we do know enough to take action.

Free and democratic participation in society requires a better system. Each non-profit group that forms must file a tax return, so there is transparency and oversight. The time has come to shut down the IRS Exempt Organizations Division approval process for non-profit groups and end the current prior restraint on participating in public policy.

We don’t need the Internal Revenue Service to stand as a censor bureaucratically or politically approving or dawdling to decide whether certain groups are permitted to organize.

A free society cannot tolerate it.

This is Common Sense. I’m Paul Jacob.