Of Kristol’s evocation of the “original Constitution”—and, by implication, modern liberalism’s trashing of it—Chait writes, “The ‘original Constitution’? The one that permitted slavery? Does Kristol want to do away away with the 11th through 27th amendments to the Constitution? I’m sure he does not. But if Kristol obviously does not mean what he actually wrote, what does he mean?”
We all know the drill by now: the “original,” pre-Progressive era Constitution was not designed for the expansive power to regulate interstate commerce that Congress now enjoys; for “transfer payments” or the redistribution of wealth; or, generally speaking, for any interference between the consensual acts of individuals in the marketplace.
I return to it from time to time, because it’s such a perfect distillation of the kind of jurisprudence that infuses the tea party and liberty movements, and Kristol’s musing furnishes me another excuse: Ken Cuccinelli’s legal brief against Obamacare’s individual mandate in the Texas Review of Law & Politics.
In it, Cuccinelli answers Oliver Wendell Holmes’s famous Lochner dissent that “a constitution is not intended to embody a particular economic theory … The Fourteenth Amendment does not enact Mr. Herbert Spencer’s social statics.” (Hence Chait, lazily switching between upper- and lower-case “c”: “The Constitution is not a vague set of ideals; it’s a clear set of rules. That’s the whole point of a Constitution.”)
Cuccinelli says Holmes was arguing with a straw man. Of course it’s nonsense to claim the Constitution or the 14th Amendment embody Social Statics. But could Holmes plausibly deny that it embodies John Locke? “This would have been regarded as puzzling at best and at worst demonstrably false.” So there, fine: Forget Herbert Spencer. We can appeal to Locke (and Blackstone, and Hooker) and basically arrive at the same libertarian defense of economic rights. Sic utere tuo ut alienum non laedas: so use your own as not to injure another’s property.
For now, let’s table this aspect of the debate. Readers know I’d rather live under Chait’s Constitution than Cuccinelli’s. My point here is this: Bill Kristol is a terrible, horrible, no good, very bad ambassador for the Tea Party Constitution!
A constitution whose notion of executive power is expansive enough to satisfy the likes of Bill Kristol and John Yoo should have no trouble accommodating social insurance programs or public assistance for the needy.
I’m sorry: you don’t get to have your kickass policy suite of torture, democratism, intergalactic swamp-draining, World War XXIV, and “We’re all Everybody-ians now,” and also complain about food stamps or federal insurance exchanges.
Tea Party and liberty movement conservatives have every right to argue for an originalist interpretation of individual economic rights.
Bill Kristol does not.
President Barack Obama has made it absolutely clear that he will rule by Executive Order for the remainder of his term. Republicans and independents have decried this as an unconstitutional power grab, a usurpation of authority granted by the Constitution to Congress, while Democrats are mostly too embarrassed to defend what they so strongly opposed under George W. Bush and Richard Nixon.
A conservative response should begin by observing that the U.S. Constitution is not as legally neat as the protesters suggest. While most folks focus on the uplifting sentiments of the Bill of Rights to liberty and property, the essential Constitution is all about power and how it is divided. The progressive myth of a legalistic constitution of rights is just that, a fable to cover its own view of political power. The Bill of Rights was not even part of the original document. The fundamental Constitution is outlined in its Articles, dividing power between legislative, executive, judicial, state and amendment institutions. But the boundaries between them are anything but clear.
Abraham Lincoln suspended judicial habeas corpus and controlled speech during the civil war without legal support from Congress and actual opposition from the Supreme Court. The succeeding Reconstruction Congress impeached the president for merely attempting to replace his own cabinet and when unable to convict him made his veto a nullity by strict party rule, rigged voter lists in the South, and effectively unicameralizing the Senate and House under a joint committee of Republican leaders. Andrew Jackson directly refused to implement a Supreme Court decision supporting Cherokee property rights, distaining the court to enforce its ruling if it could because he would not.
Isn’t the Supreme Court supposed to have the last word on these matters? In challenging President Bush’s attempt to replace regional U.S. Attorneys against Congressional opposition in 2006, Democratic Rep. Henry Waxman said such differences between the executive and legislature must be umpired by the courts. He and his classmates were taught in law school that “the Constitution was what the Court said it was.” Bush replied he would not allow his Attorney General to enforce a judicial contempt order even if the court issued one and that was that. More recently, President Obama announced he would not enforce federal anti-drug laws against states with marijuana legalization laws and refused to deport certain illegal immigrants. Back in 1988, Congress passed a Civil Rights Restoration Act specifically nullifying the Grove City Court decision and in 1991 passed a civil rights bill overruling five Supreme Court decisions by name.
Even with their relative decline in recent years, the states are not without redress either, as the marijuana legalization laws demonstrate. States have created constitutional amendments, laws, and attorneys general suits to circumvent national laws and opinions on marriage, abortion, racial preferences, gun restrictions, the Real ID Act, Obamacare (by more than half the states), and many others. Indeed, many federal laws and court decisions are administered by state bureaucracies that differ in their interpretation and enforcement greatly, as Alabama and Massachusetts in fact do. Amendments to the Constitution have been passed on many critical subjects over the years and on several occasions the mere threat has changed federal policy.
Taxes would seem one area where the legislature must predominate. No taxation without local representation was the principle complaint justifying the American war for independence. Today the effective imposition of taxes by creative executive regulatory interpretation—such as the recent increase in fuel emission standards—is the rule rather than the exception. Judges have required state legislatures to increase taxes to upgrade schools for minorities or to redress other presumed shortcomings for all kinds of special interest purposes. A St. Louis federal court in effect ran the local school for decades. Since the Supreme Court has ruled that the Obamacare penalties were taxes, exemptions and changed regulatory requirements are in effect taxes passed by the health and treasury secretaries alone.
President Obama is by no means the first to govern by Executive Order. Read More…
Today marks the 41st anniversary of the national legalization of abortion in the United States. Thousands will march on the Mall and in the streets of Washington D.C. in protest of this decision, braving frigid temperatures and a blanket of snow to express their profound moral objection to Roe v. Wade and lamenting the estimated 55 million young lives that were legally extinguished since January 22, 1973.
The March for Life has become a rallying point for the pro-life movement, an annual pilgrimage of sorts, especially for young people who gather together to affirm a bedrock belief: the sanctity of human life from conception to natural death. Even amid the overwhelming sense of tragedy and loss that draws them to D.C., in order, it is hoped, to effect a change, there is also a sense of affirmation and even celebration in the company of many others who are also so firmly committed, who gather to defend a belief that is today dismissed and mocked by cultural elites and cognoscenti (including the governor of New York, purportedly a Catholic), who find joy in the fellowship of so many companions who stand for life. As one friend posted on Facebook, “the Tribe is together.”
Amid the widespread sense of shared purpose, there is perhaps little time or inclination to reflect on a question: why gather, as Marchers do, in Washington D.C.? It is perhaps a question whose answer is self-evident: the March ends outside the Supreme Court, which continues to affirm Roe v. Wade as controlling precedent. It is the location of the president and the Senate, which ultimately has the power to make or confirm appointments to the Court. It is the nation’s media center, where such a protest has the best chance of being amplified to the nation. It is physically laid out to accommodate large protests, with its Mall almost seeming to have been designed for that purpose. It is the nation’s capital, where our elites congregate to make policy and steer the nation. Naturally, if people from all parts of the nation gather in protest of a national issue, it is not only the best place, but the only place.
However, the March’s annual presence in D.C. obscures a number of issues, above all, whether abortion is ultimately a political and even legal matter. On one level, inescapably so: it has been a political matter for decades, even a “wedge” issue that has become a defining difference between the two political parties. It is obviously a legal issue, generating countless pages of legal theory and philosophical argument, as well as scores of subsequent High Court and even more lower court decisions that have responded to ongoing challenges and debates over the issue. So perhaps no further thought is necessary—destination D.C.
However, by other considerations, treating it exclusively as a political and legal matter obscures the extent to which it is most fully a question of culture. And, if conservatives would generally tend to agree on one thing—aside from the immorality of abortion—it is that culture does not originate in Washington, D.C., or at least that it shouldn’t. Read More…
America has 5 percent of the world’s population but one-fourth of its prisoners. Nearly one-third of Americans are under correctional facilities’ control at a yearly cost of $60 billion. Imprisonment has grown 400 percent over the past twenty years, the great majority for non-violent crimes. And two-thirds of criminals are back in jail for similar crimes three years after they are released. Our current correctional policy is a national shame and it simply does not work.
Both Edwin Meese and Eric Holder, the attorneys general for presidents as different as Ronald Reagan and Barack Obama, have criticized this status quo. So have uber-liberal E.J. Dionne Jr. and New Right founder Richard Viguerie. The American Civil Liberties Union and Right on Crime agree. Holder’s plea to limit sentencing for non-violent offenders can be questioned coming from one who is otherwise criminalizing new civil procedures and is blunt that his motivation comes primarily from the “shameful” fact that black male perpetrators receive longer sentences than whites. Likewise, while calling for bipartisan agreement, Dionne also emphasized the need for gun control and ending “stop and frisk” laws, a sure means to derail agreement. Caution is called for but the fact that both left and right have expressed doubts is significant.
Even Dionne concedes the crisis began in the 1960s when an “anything goes” leftist counterculture romanticized illegal behavior as glorious acts of self-fulfillment and independence, all beamed to the public by a sympathetic media and popular culture. A liberal Supreme Court responded with decisions expanding criminal rights, limiting confinement and the death penalty, and restricting police response. Crime exploded with murder and willful manslaughter doubling from 5.1 per 100,000 population in 1960 to 10.2 by 1980. The people responded by demanding a narrowing of rights and tougher penalties. The politicians complied.
The right became identified with “tough on crime” even though the leading voice of this frustration was President Richard Nixon who was anything but conservative in most of what he did, overseeing large increases in welfare spending, environmental regulation, racial preferences, and even wage and price controls. More principled conservatives supported Nixon’s program out of outrage that the Supreme Court had acted so arbitrarily by overriding Congress, the Executive, and the states without the least consideration of public opinion. As the right gained politically for supporting tougher policing and punishment, the more pragmatic left led by then Senator Joe Biden claimed equal toughness on crime by applying the death penalty and longer sentencing to many less violent matters. Tough-on-crime turned bipartisan.
Conservatives began having second thoughts as laws exploded to criminalize vast new areas of social life. Today there are 4,000 federal laws elaborated by 300,000 national regulations with thousands more at the state and local levels. Even lawyers do not know the law outside their own narrow field. Most of the additions were for nonviolent offenses, now representing 90 percent of federal prisoners. Violent crimes such as murder, assault, robbery, rape, and battery are widely acknowledged as the most serious, with the guilty being rightly placed where they cannot hurt society again. But imprisonment for non-violent crime is another matter—especially considering that a 2009 Associated Press study found that 60,000 inmates were sexually assaulted that year. Read More…
Since Jimmy Carter reinstated Georgia’s death penalty to Supreme Court satisfaction in 1976, capital punishment has been the subject of constant public debate, pitching tough-on-crime conservatives against bleeding-heart liberals against Catholics advancing a seamless pro-life garment. According to the 2013 year end report by the Death Penalty Information Center (DPIC), though, death by execution has undergone a decade-long decline. Executions peaked at 98 in 1999, and death sentences peaked slightly earlier from 1994-1996.
This in part reflects a decrease in violent crime from the dark days of the early 1990s, as the homicide rate has also dropped over the same period. DPIC points, however, that there is a technical reason at least for the decline in actual executions: states can’t get the goods. Because many of the cocktails used in lethal injection are manufactured in Europe, where the death penalty enjoys substantially less favor than here in the United States, Europeans have instituted export bans on drugs for executions. The American Medical Association has also long ruled that “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”
With fewer avenues to access the drugs that provide the latest attempt at “humane” state killing, and no access to the otherwise most capable technicians for administering those drugs, the very act of executing a prisoner convicted of a capital crime is almost hopelessly complicated. One wonders, however, if the perpetual pursuit of a more perfect lethal cocktail, a more humane fashion of killing, is ultimately in conflict with the nature of capital punishment itself. As we have moved from hangings and firing squads to the electric chair to lethal injection, we see the attempt to use technology to intercede between us and the death act, to rationalize it, to sterilize it. It bears remembering that the guillotine was conceived as an enlightened method of execution more fitting for the Age of Reason.
Death’s horror cannot be rationalized, however, as it points to our finitude, and signals the limits of what our reason can reach. By wrapping it in ever more institutions and legalisms, the liberal project tries to do more than prevent “cruel and unusual punishment.” It seeks to conquer our darkest discomforts with bureaucratic procedure, anonymous responsibility, and sterilizing technology.
The well-known scripture, John 8:7 calls for he who is without sin to cast the first stone. Attention is usually concentrated on the first half, the impossible condition and qualification, but there may be some wisdom to be gleaned from the latter, the call to action. The Nazarene preacher demanded that one who should take up the action of execution should weigh the momentousness and savagery of the act and be willing to expose himself to the accompanying burdens.
Insofar as American states continue to maintain and enforce capital punishment, perhaps we too should be willing to face the nature of state-sanctioned killing, rather than first administering muscle-paralyzing drugs that shield us from the sight of any discomfort that death may bring.
Six months after Edward Snowden’s first powerpoint slides went public, it’s official: all three branches of government have weighed in against the NSA’s surveillance overreach.
Yesterday, President Obama’s own hand-picked panel issued a 308-page report recommending a series of reforms to the National Security Agency and overall national surveillance structure. The five-member panel had previously been criticized for not being independent enough of the presidency, and included such members as Cass Sunstein, President Obama’s former “nudge” and regulatory czar who is also married to current UN Ambassador Samantha Power; Michael Morrell, the recently resigned deputy director of the CIA; and Peter Swire, a former Obama economic aide.
Nevertheless, the panel released 46 sweeping recommendations, highlighted by the recommendation to end the bulk phone record collection program that made up Snowden’s very first revelation. It urged congress to pass legislation ending the NSA’s ability to collect and maintain records of Americans’ phone metadata for years on the presumption that it may at some point be pertinent and subject to a legitimate search. Instead, the panel recommended that the NSA be barred from such pre-emptive collection, and instead need to obtain a specific Foreign Intelligence Surveillance Court order for each set of records. Instead of being preserved in government archives in perpetuity, the records would be subject to the company’s own data retention policies, so a court order served for two-year-old records at Cricket, which only retains records for six months, would come up blank. Verizon, the first company whose cooperation with the NSA was exposed, keeps records for one year, and AT&T, five years.
Earlier this week, a George W. Bush-appointed judge ruled the program likely unconstitutional and issued a (stayed pending appeal) injunction against it, writing “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” The same program was the target of Justin Amash and John Conyers’ joint effort to defund NSA bulk collection this spring, and is banned under a proposed law by Patriot Act author Jim Sensenbrenner (R-Wis.) and Senate Judiciary Chairman Patrick Leahy (D-Vt.). President Obama is not bound by the recommendations of his panel, and the White House has said that it will announce which suggestions it will itself adopt in January.
What is particularly important, and special, about this case is the unison with parts of the executive, legislative, and judicial branches are speaking in rebuking the NSA’s activities as unconstitutional. Often in our nation’s history, particularly post-Warren Court, we have acted as if the only legitimate judges of the Constitution sit on the Supreme Court. After last summer’s Obamacare ruling, for instance, Democrats and many in the media reported that the law was authoritatively stamped “constitutional” forever. That is an impoverished formalism, however, unworthy of our democratic system.
Instead, thanks to the wisdom of the Founders, we have three branches of government through which to pursue the political determination of constitutionality. The Constitution does not defend itself, nor does it belong to a single branch to define. Instead, our checking and balancing institutions of government compete in the political arena to give heightened voice to the public debate and uphold their sworn oath to protect and defend the Constitution of the United States. So they are now engaged in a great civil discussion to determine what invasions of privacy the Constitution permits, and what invasions prudence counsels to be forbidden, even within its limits.
Perhaps Edward Snowden’s greatest achievement, beyond the pushback of the surveillance state, beyond the awakening of the public to any particular debate, is the awakening of our Constitutional order to demonstrate its continued potency in the face of new and unexpected challenges.
John P. Carlin is on track to become the Justice Department’s top national security lawyer, and assume responsibility for approving the thousands of domestic surveillance requests sent to the Foreign Intelligence Surveillance Court every year. If Attorney General Eric Holder had his way, Carlin never would have been nominated.
As Shane Harris reported at Foreign Policy yesterday, Holder “strenuously” objected to Carlin, who was instead the favored choice of White House officials “Kathryn Ruemmler, the White House counsel, and Lisa Monaco, the president’s homeland security and counterterrorism adviser.” Carlin had been Monaco’s chief of staff when she held the position, Assistant Attorney General for the National Security Division, prior to moving to the White House, and he now holds the office in an Acting capacity. Holder reportedly had his own list of candidates, including his own former national security counsel, Amy Jeffress.
Carlin’s anonymous critics quoted in the FP piece level two primary charges against him. First, while he is nominally qualified for the position, “several career prosecutors who know and have worked with Carlin say he does not have a firm enough grasp of national security and surveillance law, which is particularly important when approving applications for surveillance warrants in terrorism and espionage cases.” Second, and seemingly more to the core of the issue, “Former officials said they are concerned that Carlin … doesn’t speak as an independent voice for the department, but rather is aligning his positions first with the White House, and particularly with Monaco, thus undermining Holder’s authority.” Two went so far as to draw “comparisons to John Yoo, the controversial Justice Department attorney in the George W. Bush administration, who was known to have his own relationships with White House officials and was seen as operating outside channels meant to guard against political influence.” John Yoo was most famously the author of the Bush Administration “torture memos”.
At a time when more attention than ever before is being paid to the legal and extra-legal acrobatics the executive branch has performed to expand its surveillance powers, Carlin’s appointment should already be facing special scrutiny from the Senate Judiciary Committee. According to Slate, “The government has an astonishing success rate before the FISA court. Between 2010 and 2012, the court approved all of the 5,180 applications for surveillance and physical searches except for one that the government unilaterally withdrew.” That near-automatic approval makes the independence of the Justice Department all the more important. As one anti-Carlin former official quoted by Harris says, “There should be some walls between the Justice Department and the White House. The White House should not have a direct feed.”
Much of the resistance to Carlin quoted in the Foreign Policy piece appears to be a turf war between Holder and other Obama Administration officials. But the position and its responsibilities are far too important to pass without severe scrutiny in the post-Snowden era.
Pfc. Bradley Manning was found guilty of more than 20 crimes, including several violations of the Espionage Act, but was significantly acquitted of the charge of aiding the enemy. The Washington Post reports:
The judge, Army Col. Denise Lind, found Manning guilty of most of the more than 20 crimes he was charged with, including several counts of violating the Espionage Act. She also acquitted him of one count of violating the Espionage Act that stemmed from his leak of a video that depicted a fatal U.S. military airstrike in Farah, Afghanistan. …
Had Manning been convicted of aiding the enemy, he would have faced a life sentence in prison without the possibility of parole. Civil libertarians feared that a conviction on that charge, which has not been used since the Civil War, would have sent a chilling message to would-be government whistle-blowers. …
Lind ruled in January that any sentence the Army private receives should be reduced by 112 days because of his mistreatment in confinement.
This past September, Chris Bray reviewed Chase Madar’s The Passion of Bradley Manning: The Story of the Suspect Behind the Largest Security Breach in U.S. History, which he describes thusly: “Writing from what often seems to be a leftist perspective, Madar nevertheless builds on a deeply conservative explanatory foundation in which political illnesses have cultural causes.”
The book “necessarily and appropriately looks beyond the figure of Manning himself to ask how we understand information, how we perceive our relationship to state authority, and how people who serve the armed power of the state see their own place in its project.”
Bray describes how, “Pulling at the masks that cover neoconservative and neoliberal foreign policy, Manning seems to have been engaged in a small-r republican project, looking for ways to give informed citizens the knowledge to restrain state power.”
Read the rest of the review here.
President Obama surprised the White House press corps today when he dropped into the daily briefing to deliver remarks in the wake of George Zimmerman’s acquittal in Trayvon Martin’s killing. Alongside the week-long calls by many on the left for the President to personally address the issue, there had been hand-wringing on the right that whatever he could say would only further inflame the already impassioned and polarizing topic. So with whatever breath they could gather after reportedly greeting the President’s entrance with “woah!”, the press waited anxiously to hear the message he would deliver.
And the President nailed it.
On the policy particulars involved, he appropriately demurred most specifics, while cautioning:
I know that Eric Holder is reviewing what happened down there, but I think it’s important for people to have some clear expectations here. Traditionally, these are issues of state and local government, the criminal code. And law enforcement is traditionally done at the state and local levels, not at the federal levels.
As to the trial process itself, the President again appropriately respected the local rule of law, saying “once the jury has spoken, that’s how our system works.” But, he continued, “I did want to just talk a little bit about context and how people have responded to it and how people are feeling.” And that is where he drew on his unique position as a black man and as the President of the United States to bring context and clarity to the debate, and an official voice to those left feeling voiceless and devalued by the verdict.
“You know, when Trayvon Martin was first shot I said that this could have been my son. Another way of saying that is Trayvon Martin could have been me 35 years ago,” he began, for “there are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store,” and who haven’t heard “the locks clicking on the doors of cars” when they cross the street. Black men—no matter their status or dress—have to deal with a default perception of criminality, a perception that very clearly played a role in the death of Trayvon Martin.
The President addressed critics on the right by saying “this isn’t to say that the African American community is naïve about the fact that African American young men are disproportionately involved in the criminal justice system,” or “in understanding that, statistically, somebody like Trayvon Martin was statistically more likely to be shot by a peer than he was by someone else.” All of the above, however, “contributes to I think a sense that if a white male teen was involved in the same kind of scenario, that, from top to bottom, both the outcome and the aftermath might have been different.”
He addressed the “stand your ground” laws from an Alan Jacobs position, asking if the legal protection of lethal escalation “is…really going to be contributing to the kind of peace and security and order that we’d like to see?” Most damning for those laws’ standing was the simple question: “if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk?”
Most important, however, was his approach to how we should go forward. “I’m not naïve about the prospects of some grand, new federal program. I’m not sure that’s what we’re talking about here,” though he hopes to use his “convening power” to do “a better job helping young African American men feel that they’re a full part of this society and that they’ve got pathways and avenues to succeed.”
There has been talk about should we convene a conversation on race. I haven’t seen that be particularly productive when politicians try to organize conversations. They end up being stilted and politicized, and folks are locked into the positions they already have. On the other hand, in families and churches and workplaces, there’s the possibility that people are a little bit more honest, and at least you ask yourself your own questions about, am I wringing as much bias out of myself as I can? Am I judging people as much as I can, based on not the color of their skin, but the content of their character? That would, I think, be an appropriate exercise in the wake of this tragedy.
As I reflected last night, there have been and will continue to be discussions in barber shops and living rooms nationwide about Trayvon, Zimmerman, and race in America. Those are the conversations that matter more than any national television panel ever will. What President Obama did today was to give those discussions all the material they could need to start genuinely grappling with our social state, and our own relationship to our neighbor.
Let’s put down the computers, then, and pick up the conversation.
That the prosecution in the Zimmerman trial asked the judge to allow a verdict of “third-degree murder” — i.e., child abuse, since Trayvon Martin was 17 — testifies to the prosecution’s failure and panic.
For George Zimmerman’s defense has proven, beyond a reasonable doubt, that he shot Trayvon Martin not out of malice, rage or hate — but in a desperate act of self-defense.
Zimmerman was being beaten “ground-and-pound,” mixed martial arts style. His head was being banged on the cement. Screaming again and again for help, he pulled out his gun and fired.
Even the prosecution is now conceding Trayvon might have been on top, and is now scrambling for a compromise verdict on a lesser charge than second-degree murder, a charge that never should have been brought. Indeed, this trial should never have been held.
What we have witnessed in Sanford, Fla., is the prosecution of an innocent man for murder because the politically and socially powerful demanded it.
That Trayvon is dead is a tragedy, and an avoidable tragedy. But it was not murder. And it does not justify railroading a man who, whatever his mistakes that night — and George Zimmerman made them — committed no crime.
The case comes down to four questions. And the answers, supported by the evidence, testimony and common sense, point straight to an acquittal.
First, who was the aggressor?
All agree it would have been better if Zimmerman had never left his car or followed Trayvon that night.