Tag: United States Constitution

Stevens Advocating for the Liberal Constitution

John Paul Stevens, the former Supreme Court justice whom Lee once called a dick for his decision in Raich v. Gonzalez, has a book out about how to rewrite the Constitution so that liberal agendas will be easier to advance. I wish I were joking about that.

There’s been a lot of noise about rewriting the Constitution from the Left lately. You can read screeds about it here and here (that’s from Brooks, but he’s practically a lefty these days). The basic complaint is that our system has created gridlock and stops the President from doing things that need to be done so we should drastically overhaul it. Needless to say, these essays vanish very quickly once Republicans are in power and stopping the President from doing whatever the fuck he wants is suddenly a good thing again.

You can read a really good response to this nonsense here, but months ago, I marked down this tweet as the absolute perfect response:

Stevens, to his credit, was one of the few justices — left or right — who cared about civil liberties. But like many lefties, he thinks the only problem with our Constitution is that it doesn’t give government enough power. So, in his new book, he proposes six constitutional amendments. I’ll get to the first one in a minute but here are the other five. You can go to Hot Air for the in-depth descriptions.

  • An “Anti-Commandeering Amendment” This would essentially ramp up the supremacy clause and break the power of the states to oppose federal law. If I read this correctly, it would mean that no state could sue against Obamacare. It would mean that pot would be illegal in every state again — no surprise from John Paul “Raich” Stevens. It would also mean — and liberals never do seem to see the flip side of this — that President Santorum could outlaw abortion nationwide with a stroke of his pen. You can probably guess what I think of this idea. Our federalist system does stop the federal government from imposing “good” laws on the entire nation; it also stops them from imposing bad ones.
  • An Anti-Gerrymandering Amendment — I wouldn’t really have a problem with this, as gerry-mandering has created huge problems for both parties. But I’m curious whether it would be applied to districts gerrymandered to create majority-black districts.
  • An amendment to legalize campaign finance law. A question: do people never learn from history? The last time we let our political twitches produce a government-empowering amendment, we got Prohibition.
  • A Sovereign Immunity Amendment. This would enable the prosecution of states and state officers that violate Congressional laws and amendments. If I read this correctly, it means that every state official in Colorado and Washington could be arrested for violating Federal anti-drug laws.
  • Amending the 8th Amendment to outlaw the death penalty.
  • Really, this is unworthy of a Supreme Court justice. There’s no subtlety; no concession to any conservative interests. It’s just another liberal wish list. I don’t find it any more insightful that the ramblings of some bonged-up college freshman.

    But the real beauty is in his proposals is the one I left out. In an appalling op-ed, Stevens argues that we should change the second amendment:

    For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

    None of this is correct. The history of the Second Amendment doesn’t start with Miller, it starts with founders who stated openly and repeatedly that the Amendment was meant to protect an individual right. And yes, that applies to modern weapons just like the First Amendment applies to the internet (or should; you never know how SCOTUS will move).

    As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arm.

    Just like they have the ultimate power to decide what constitutes cruel and unusual punishment; the power to decide when something restricts free speech; the power to decide when someone’s fourth amendment rights have been violated; the power to decide when someone is being discriminated against. In short, just like the kind of powers Stevens liked to use when it came to civil liberties he supported.

    That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

    No word on if Stevens wants the First Amendment abridged to read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof as long as it is Christianity; or abridging the freedom of speech, or of the press of the government; or the right of the people peaceably to assemble with permission, and to petition the Government for a redress of grievances as long as they ask nicely.”

    A Second Amendment written like that is no second amendment at all. It would completely abrogate any right to bear arms and allow the President to simply outlaw all firearms completely. Our right to bear arms would be completely dependent on the whims of our government.

    And, frankly, Stevens can drop that horseshit about how the purpose of the amendment is to “protect the states from federal interference with their power”. His other two proposed amendments would completely destroy that protection. If you’re going to change the Second Amendment like that, just repeal it. Don’t put on a fig leaf about state militias when you’ve completely gutted federalism.

    See, this is why amending the Constitution is hard and is supposed to be hard. This is why people like me get so uppity about it. Since the day it was written, powerful men have fought like hell to try to remove its restrictions on government power and erode our civil liberties. Stevens knows this. He was very big on recognizing when our civil liberties were being eroded in attacks on the fourth, fifth, sixth, seventh and eight amendments. But when it comes to amendments and civil liberties he doesn’t like … well, we just need to amend the Constitution, don’t we?

    But … I’ll give him some credit here. At least he’s advocating the we change the Constitution. Most Democrats are advocating that we completely ignore it and that Barack Obama do whatever the hell he wants. So while I may think Stevens’ ideas are bad, at least he has the integrity to advocate the right way to go about them.

    Unleash the AG’s

    So this happened last week:

    Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them. Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

    He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings. Holder’s comments are not customary for a federal attorney general, as they do not frequently instruct their state counterparts on how to do their jobs.

    Holder is taking a lot of fire for this this and it’s understandable. An AG’s job, after all, is to represent the state and to defend its laws in the courts. But … after thinking about it for a while, I actually agree with Holder for probably the first time in his entire tenure.

    The second part of Holder’s statement is probably the more important: an attorney general should not refuse to defend a state law simply because he disagrees with it. All lawyers are required to argue cases where they don’t like the side they are arguing. Do you think criminal defense attorneys like defending rapists or murderers? They do it because everyone deserves a defense. They do it because it’s their job. An attorney general should defend his states laws even when he doesn’t like them because that’s his job: to represent the state.

    However …

    There is one exception, and that is when the attorney believes that the law involved is unconstitutional. In that case, I would posit that not only should an AG not defend a law he believes is unconstitutional. In some cases, he should argue against it.

    I know that sounds like a recipe for chaos and I think this power should rarely be invoked. DOMA, for example, was of questionable constitutionality and I think, in that case, the Obama Administration should have stood by it. But when an Administration believes that a law is a blatant violation, should they not defend our liberty in court?

    I’ll admit that this is an outgrowth of my view of how our government is supposed to work. Far too often, the judgement of whether a law is constitutional is left the Courts. But it is the sworn obligation of all branches to defend our liberty. The Courts should bounce bad laws, yes. But they don’t always, as the Kelo abomination demonstrated. In those cases, we need the other branches to defend our liberty. We need them to stick up for us when the Courts won’t.

    Congress and State Legislatures should not pass laws that they believe are unconstitutional. The President and the Governors should veto unconstitutional laws and refuse to use powers they believe are unconstitutional, even if the courts approve them (warrantless wiretapping, for example). And even if the AG does enforce bad laws, for the sake of order, I have no problem with him arguing that the law is unconstitutional (there will never be a dearth of attorneys willing to argue in favor of the government).

    I hate to play the game of If I Were President, but I think it’s relevant here. Just last week, I wrote about the vile unconscionable thing that is asset forfeiture. Should not a President order his Justice Department to end asset forfeiture? It is a choice, not a requirement, after all. And should he not have an AG go into Court and argue that this violates the people’s rights? Why must the engine of government justice always be turned against the citizen and against his liberty?

    It’s a little shakier when you get down to the state level, where you could argue that the state AG’s should defend a law even as the federal lawyers argue against it. Or you could argue they could resign on principle. There is a danger of opening a can of worms and politicizing the court process even further. I see that.

    But I don’t think this issue is as clear-cut as a lot of people want to make it. I’m not sure gay marriage laws pass the threshold, but I don’t think it’s ridiculous to argue that a state can realize it is in the wrong and refuse to defend an unconstitutional law.

    Citizens Untied

    I’ve ever understood the hue and cry among the Left over Citizens United. It seem to me a lot of it is based on misinformation. They think that Citizens opened the door for big evil corporations to make massive policial campaign contributions. But that was already legal. Citizens was a very specific case where a non-profit political group made a movie about Hillary Clinton and were forbidden to show it 60 days before an election. It was an issue of free speech, not money. The same laws used to block Hillary: The Movie could and have been used to shut up unions, environmental groups and minority rights groups. But aided by a media who want to ensure that they are the only ones who can tell us what to think, this bullshit narrative has take hold.

    Nancy Pelosi and several other Democrats have thrown their weight behind the “People’s Rights Amendment”. This has no chance of passing, none. It’s a bone to the Far Left. But it’s a remarkable insight into how these people think. Here’s the text:

    Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

    Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

    Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

    This is an extremely bad amendment. As Volokh points out, the wording is liberal enough that it would strip almost any non-individual of their basic rights, including churches, corporate newspapers, all non-profits and basically anyone they want:

    Congress could ban speech about elections and any other speech, whether about religion, politics, or anything else. It could also ban speech in viewpoint-based ways.

    State legislatures and local governments could do the same. All of them could seize corporate property without providing compensation, and without providing due process. All corporate entities would be stripped of all constitutional rights

    Except the compliant media, of course.

    The idea that we the people have individual rights but that we the people can not pool our resources to exercise those rights is insane. This isn’t about evil money-grubbing corporations. This is about any group — from the NRA to the NEA to the NBA — exercising their rights.

    You will rarely find a more perfect distillation of the hatred that our political class have for basic freedom. What pisses them off about Citizens is not money in politics or corporate rights or anything like that. What pisses them off is the idea of people saying nasty things about them. Had Hillary: the Movie tried to go through Hollywood or the MSM, it would have been stopped by the politicians’ dog washers. How dare the citizens try to get their message out some other way!

    They despise our freedom. And they more than happy to take advantage of the anti-corporate hysteria of the Left to abridge it. No politician who supports this amendment should be allowed anywhere near power.

    Best argument…

    About why what the left has been doing to us for the last century, whether you think it was meant to do good or not, is wrong, was made by Glenn H. Reynolds, he of Instapundit fame, here:

    The Constitution of the United States was supposed to create a federal government limited to the comparatively few powers specifically enumerated therein, mostly in Article I, Section 8. The idea was that the federal government would address subjects that really needed to be handled on a national level. The states would do the rest, or people would take care of matters on their own.

    As James Madison wrote in the Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

    To underscore this arrangement, the Tenth Amendment provided that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    This division of powers was intended to protect freedom by limiting the scope of the powerful national government. It was also intended to reduce the extent of corruption in the federal government. The powers most likely to encourage corruption were left to the states.

    Our forefathers understood that the bane of every system of government was the abrogation of power at the highest/ federal level that would encourage the type of corruption that turned Europe into freedom lacking the shit hole it was then and to many extents in far worse ways, is today. Obamacare is just the latest step on the road to full blown government control of everything.

    Yeah, the cultists that love Marx’s dumb idea will vehemently disown marxism, but the end goal, even if many amongst the masses aren’t bright enough to see that yet, and the politicians that push it deny that’s the intent, is full blown state control of everything and everyone. Maybe not direct control of all aspects of life like we saw in the USSR, but then again, when you have a government with not just the power to pick winners and losers, but a justification to do it all that is seen as noble – social justice – that it hides behind, and a justice system that enforces that power and agenda, you pretty much get the same with the veneer of legitimacy and democracy.

    Obamacare was just another step in that direction. One that was set up to allow the political class to basically define healthcare to be whatever government decided it was whenever it wanted, by basically completely destroying the limitations the constitution placed on the federal government. The bonus plan I believe is that even if it were to fail this dastardly constitutional challenge, they hoped it would it would come too late and with such pain that it all but set up the system to allow them to achieve the real goal: a single payer system.

    Look, I do not for a second believe that the left hasn’t spent the last half century passed law after law to increase the power & control of the federal government on healthcare system to make it better. Sure, that’s what they told us, but the intent has always been a government controlled system. But as long as the one we had worked well, they where never going to sell the public on this idiotic notion we all could see fail everywhere. Hence the massive and idiotic mountain of regulations and mandates, coupled with the bull about healthcare being a ‘right”, which have brought the existing system to the brink of implosion. And like they did when their regulations caused the recent economic disaster – they chose double down on even more meaningless regulation, while not just keeping the fundamental underlying problem that they want to use the lending industry to social engineer, but expanding on it – this is just more of the same.

    The game is to overload the system till it brakes and people HAVE to accept the government controlled single payer system they want. Obamacare took the next step, and as Reynolds put it, basically decided to make the case that there should be no limits on what the federal government wants to do if they claim it is for the welfare of people and to regulate commerce or some such nonsense. Have no doubt that next step was the plan:

    There are always arguments about the precise scope of delegated powers, and such arguments have regularly come before the Supreme Court. But it is one thing to argue about the precise extent of limits to enumerated power, and it is another thing entirely to deny their existence.

    And there you have it in a nutshell. The left doesn’t care right now: they hold the reigns of power, and their guy is pretty blatantly willing to do whatever to push their power to new heights. What can go wrong? After all, this is about doing a good, nay great, thing. Healthcare is a right, and we should all get it for free! Never mind that there is nothing that’s free, ever. So here we get the left, perplexed that even some of the leftists on the SCOTUS is weary of this dangerous usurpation of power, but the problem is a simple one with dire consequences.

    Will the court be willing to remove the “almost” and let Congress do anything it wants under the commerce power? I don’t know, but if it doesn’t go along with Obamacare, don’t blame Donald Verrilli. Instead, blame — or, rather, credit — the Constitution.

    Be afraid. Our media is doing us a disservice not pointing this out too. But what’s new? Obamacare isn’t even about healthcare: it is about removing any limitations from the feds. While you might have no problem with that today because your team has the reins of power, think about what it means when they don’t. Of course, the left has figure that once they take power they won’t ever lose it again, but then again, even the Supreme Soviets learned that lesson eventually.

    From My Cold Dead Hands

    Gun grabbers, all under the guise of public safety do they ply their nefarious intentions of eroding our civil liberties. Much like the food nazi’s, under the guise of public health, the cap and traders, under the guise of protecting our environment, the card checkers, under the guise of worker’s rights, and those conscience deniers church/state separation ignorers forcing employers to provide products and services contrary to their moral beliefs, the gun grabbers go to sleep at night with a clear conscience, knowing that they know what’s best for the rest of us. But sometimes the judicial process works, and they get spanked in the process:

    Maryland residents do not have to provide a “good and substantial reason” to legally own a handgun, a federal judge ruled Monday, striking down as unconstitutional the state’s requirements for getting a permit.
    U.S. District Judge Benson Everett Legg wrote that states are allowed some leeway in deciding the way residents exercise their Second Amendment right to bear arms, but Maryland’s objective was to limit the number of firearms that individuals could carry, effectively creating a rationing system that rewarded those who provided the right answer for wanting to own a gun.

    “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights,” Legg wrote. “The right’s existence is all the reason he needs.”

    At first I was confused about the apparent unconstitutionality of permits, but they clarified that part:

    “People have the right to carry a gun for self-defense and don’t have to prove that there’s a special reason for them to seek the permit,” said his attorney Alan Gura, who has challenged handgun bans in the District of Columbia and Chicago as an attorney with the Second Amendment Foundation. “We’re not against the idea of a permit process, but the licensing system has to acknowledge that there’s a right to bear arms.”

    OK, now it makes sense, it was the permit process in place in Maryland that was off kilter, making citizens jump through arbitrary hoops in order to exercise constitutional rights, not good.
    As simpatico with the defendant’s attorney, the permit process was not at issue, it was how it was used, allowing the government to decide if your application was worthy or not.

    What is also significant here is that the court clarified that the Second Amendment is not limited to “the home”, therefore, Maryland citizens should not be required to submit a “good and substantial reason” when applying for a concealed carry permit. Many states have instituted an arbitrary and onerous process whereby the citizens have to PROVE that they NEED a concealed weapons permit, this ruling states that belief wrong headed and not in keeping with the Second Amendment.

    The article mentions the inclusion of other states requiring a permit, but the permit process in these states only involves being truthful in the application, no “compelling need” is required, and no tacit limitation on gun ownership is the goal.

    Some libertarian minded folks might think any permits or any regulations on gun ownership is a violation of their rights. Although I understand this belief and have stated before that our liberties and constitutional protections trumps facilitating the police in the performance of their duties, I don’t think that requiring a permit to buy a handgun violates this belief (but as usual, am open to a better argument).

    Knowing who the registered owner of a handgun which was used in the commission of a crime is a public safety issue, requiring a gun safety class and a show of competence in issuing CC permits is a public safety issue, and putting some limitations (the “leeway” aspect that the ruling judge talked about in this case) in purchasing handguns and certain types of ammo is reasonable (such as we don’t allow 12 year olds to buy guns, or convicted felons). If you even want to discuss the requirements (abuses) of the cooling off/waiting period before you get your gun, (I’m ambivalent about this) we can talk about that.

    Death by a thousand cuts (some could make the argument that this administration is using sharper/bigger knives) has been the fate of the American citizenry over the last few years wrt the nanny state and it’s assault/molestation of our civil liberties. This court ruling slowed that process down a bit.

    Debt Limit Committee of Twelve Transforms Our Republican Form of Government

    There has been lots said about the Super Committee, some of it interesting, some of it not so much, but very little of it referring to the Constitution to determine either its prudence or legality/constitutionality. This post will seek to rectify that (likely) inadvertent omission.

    Under Article 1, Section 5 it is required that a “Majority” of members of both houses must be present “to do Business“. This provision was specifically debated during the framing of our Constitution and it was intended by our founding fathers to forbid “a small number of members of the two Houses to “make law”. SEE for example:

    Madison Debates, August 10th.

    Col. Mason:
    “This is a valuable & necessary part of the plan. In this extended Country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two Houses to make laws. The Central States could always take care to be on the Spot and by meeting earlier than the distant ones, or wearying their patience, and outstaying them, could carry such measures as they pleased. He admitted that inconveniences might spring from the secession of a small number: But he had also known good produced by an apprehension, of it. He had known a paper emission prevented by that cause in Virginia. He thought the Constitution as now moulded was founded on sound principles, and was disposed to put into it extensive powers. At the same time he wished to guard agst. abuses as much as possible. If the Legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the United States might be governed by a Juncto- A majority of the number which had been agreed on, was so few that he feared it would be made an objection agst. the plan.”

    Under the 12 member committee the largest possible number of States that would be represented in the making of law would be a mere 12 States. And, of the hundreds of Congressional Districts across America, 12 is the highest number that would be represented in the making of law. This 12 member committee which is designed to “make law” is exactly what the founders intended to prevent by requiring at a minimum a “Majority” of the members of both houses “shall constitute a Quorum to do Business”

    Quorum is a legal term and is the number of the officers or members of any body as is competent by law or constitution to transact business. The Constitution by its very wording requires at a minimum 50 Senators and 218 Representatives to do business. Col. MASON‘S quote above tells us that the “Super Congress” would be dangerous to “make law,” and keep in mind making law is significantly different from voting to approve a law which has already been “made.”

    As to Article 4, Section 4, we are guaranteed a “Republican Form of Government” and the very essence of a Republican Form of Government is that the people’s representatives are to be directly involved in the law making process. So, are the unique interests of the various United States represented in the law making process in this committee? No, not by any twisting of constitutional language that this writer can discern. Are the people’s interests of each of the hundreds of State Congressional Districts represented in the law making process of under this committee? Not by a long-shot.

    This act is a direct assault upon the very essence of our republican form of government as our founders intended it to operate, and if allowed to take effect, it would be a devastating and fundamental transformation of our system of government in that it excludes both the people’s interests and the various State unique interests in the sausage making process, and only allows them an up or down vote on a law made in secret and behind closed doors, just as occurred with ObamaCare.

    I personally believe that every member in the House and Senate who voted YEA to establish this “committee,” is complicit in a seditious act designed to fundamentally transform and dissolve our guarantee to a republican form of government. I have little doubt that some of you will disagree with that assessment. If you do though, please include a constitutional argument that can legitimately counter it. No legislator’s “good intentions” or thoughts that “we had to act instead of doing nothing” are valid counters to a solid constitutional argument, only another solid constitutional argument is.

    It is imperative for everyone to understand that there is nothing in the language of the Super Congress part of the debt deal bill that limits the scope of the committee to only economic issues. Everything that the Congress as a whole can address, can likewise be addressed by only 12 members once this goes into effect. That includes gun control, abortion issues, law enforcement issues, taxation, literally anything, and it empowers the committee to write “law” that cannot be amended in the House or filibustered in the Senate, thus removing the few substantive protections held by the minority against the majority that were intentionally instituted in each house very early in our history as  bulwarks against one-party tyranny.

    It is also imperative to realize that there is a sunset clause in the Super Congress legislation. I believe it’s December, 2012, though I’m not certain of that at this moment. However, that should be of little comfort to anyone who opposes the Patriot Act, which also had sunset dates for certain provisions, none of which have yet been allowed to sunset. All but one of the current Republican presidential candidates who were in Congress to vote on those sunsets voted to deny letting them expire, and this committee sunset is not any more likely to expire than the blatant 4th Amendment (plus others) assaults of the Patriot Act have been. As such, if you determine that the Super Congress is a threat to your liberties, you should start right now conditioning your representatives to expect that any of them who vote to continue the Super Congress when those votes come around, assuming of course that the Supreme Court doesn’t correctly intervene in the interim, will face staunch opposition in the following election, which, not-so-coincidentally, will be the following election cycle after 2012.

    Thanks for reading.


    Removing The Citizenship Clause

    Hal’s latest post about the Lee Amendment got me thinking (I know, caution, flying debris, clear the room) about the amendment process in general. The idea that changing times and circumstances would require new and unique measures was one well recognized by the framers, hence, a ready made apparatus for that change was baked in. They recognized early on that while taking great pains to create a comprehensive and thoughtful document, additional modifications would be needed in future years to meet the nation’s changing needs. Fair enough, but since Amendments become part of that document, is it not consistent that, “to meet the nation’s changing needs” might not already agreed upon Amendments need to changed, repealed or modified at a later date? Should Amendments be given any special reverence or treatment, separated from the body, since they were “additions”, can’t those additions be added to (or subtracted) through the exact same amendment process.

    What I would like to focus on today is a section of the 14th Amendment, the Citizenship Clause, which was taken from the Civil Rights Act of 1866:

    The Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens

    Now I should admit up front that I have not given this much thought and it is clearly understood that those Washington goofs have bigger fish to fry and more impending problems on their plate then to consider any Amendment amendments, but I find it odd that so many folks squeeze that hair trigger of theirs in their negativity to even discussing the matter. And it begs the question, is there anything so sacred or holy about this provision that bars even an adult discussion on the matter? If we admit that the Amendment process was designed to address “changing needs” and that the 14th Amendment was written about 150 years ago, and primarily to address the issue of slaves becoming citizens, and also admitting that illegal immigration is a big problem, the founders not anticipating that whole anchor baby concept, is not at least a discussion warranted?

    I’m not going to take sides on this (yet) but am wondering:

    Why should the USA honor citizenship for illegals that streak across the border seconds before their moment of conception?
    If illegals broke the law in crossing our borders, should bad (illegal) behavior be rewarded?
    Could not the Citizenship Clause be the impetus for the illegal immigration problem in the first place?
    Given the onerous burden illegal immigrants place on the social programs of the individual states, would not nipping this in the bud by removing the carrot better the finances and balance sheets of states already hemorrhaging at the gills?
    Does not this clause make a mockery of the citizenship process legal immigrants must follow, creating a laughable double standard and encouraging criminality?

    Hit any and all points that strike your fancy.

    I expect the left to demonize any legitimate attempt at debate on this issue, but the question stands, is it worthy of debate or do we just assume that some subjects are so sacrosanct that the mere discussion deserves a woodshed beating?

    Where do you stand?

    The Constitutional Question

    Hmm. Now this is interesting:

    Growing increasingly pessimistic about the prospects for a deal that would raise the debt ceiling, Democratic senators are revisiting a solution to the crisis that rests on a simple proposition: The debt ceiling itself is unconstitutional.

    “The validity of the public debt of the United States, authorized by law… shall not be questioned,” reads the 14th Amendment.

    “This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?'”

    By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution. Bipartisan negotiators are debating the size of the cuts, now in the trillions, that will come along with raising the debt ceiling.

    It’s not just Democrats. Bruce Bartlett is among a small handful of conservatives arguing this case. And they may actually have a point. The debt ceiling has always been kind of an ad-hoc thing. It’s only in the last few years that it’s become a political issue. It would definitely require the Supreme Court to decide on the validity of the debt ceiling.

    That having been said … let’s not go there. For one thing, this is an attempt by the Democrats to weasel out of balancing the budget. They don’t want to make the hard choices on spending. They would love to find a loophole allowing them to avoid making any choices.

    For another thing, as the HuffPo notes, this is unlikely to save the economy if we crash the debt ceiling. If we’re sitting around having a Constitutional debate about the debt, the bond markets are going to get spooked anyway. Arguing the fine points of Constitutional Law while the economy crashes around our ears would be about as close to fiddling while Rome burns since … well, since Nero fiddled while Rome burned.

    And, to be frank, this is a strange place for the Left to start getting originalist about the Constitution. They’re willing to take a “living breathing Constitution” attitude when it comes to states’ rights, enumerated powers, free speech, the right to bear arms, the commerce clause, eminent domain, freedom of religion, etc., etc. But suddenly, when it comes to debt, they’re a bunch of Antonin Scalias? Please.

    I expect the line of argument to gain some ground, however. Eventually, Republicans may figure out this is a way to weasel out of having to eliminate tax deductions and credits to raise revenues. And if there’s one thing we’ve learned about Congress, it’s that they will always take the weasel route if they can.


    Time Magazine has a front page article on the Constitution and the debate over it that is so hackneyed, so stupid, so factually challenged, that it must have been written by a summer intern snorting coke off the asses of drunken … oh, fuck, it was the Managing Editor? And he just sent two years at the National Constitution Center? What we he doing there, licking hallucinogens off the tiles? Even the guy who swept the floors would have better grasp of the Constitution than this:

    Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: “The Constitution was written explicitly for one purpose — to restrain the federal government.” Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before. (See portraits of the Tea Party movement.)

    If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed.

    Honestly? If a student turned this into class, I’d fail them. The Constitution absolutely and most definitely limits the powers of the federal government. It spells out specific powers that it has, lays out rights it can not violate in using those powers and closes with: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” I guess the guys at Time are too wise and erudite to be bound by declarative English sentences. But to most of us, the meaning is all too clear.

    A full deconstruction of Time’s nonsense can be found here. Stengel tries to argue his way to supporting Obama’s actions in Libya, calls on Obama to unilaterally raise the debt ceiling, justifies Obamacare and argues for getting rid of birthright citizenship. The Obamacare argument is particularly bad as he argue that all medicine counts as interstate commerce because doctors buy their stethoscopes out of state.


    What this is really all about is the Lazy Liberal Man’s Way of Amending the Constitution. As I have argued before, people use “living Constitution” arguments because they are too lazy or their views too unpopular to go through the process specifically designed to change and update the Constitution: the amendment process. The abolitionists, the suffragettes, the early 20th-century progressives, the civil rights leaders — these people did what was required to change our country. It took decades and they had to fight like hell. But the result was a clear, decisive and absolute victory that changed our country for the better (well, mostly, prohibition and income tax were big mistakes).

    Living constitution people want to go through the backdoor, to shove their ideas into the Constitution purely by dint of their moral and intellectual superiority. Persuading a supermajority of the country is simply beneath them. It’s laziness and condescension, pure and simple.

    And the danger of “living Constitution” arguments can not really be overstated. Once you’ve bought into the idea that our founding document is just a list of suggestions, everything is on the table. Even of our freedom of speech founders. The beauty of being literal about the Constitution is that everyone knows what the rules are. The law is no longer arbitrary or subject to the whims of legislatures and prosecutors. When the Constitution says we have a right to free speech and we take that as literally as possible, we know we’re free. In a living Constitution world, we can suddenly and arbitrarily find ourselves in prison because someone decided you can’t call the President a dumbass.

    Fareed Zakaria has a smarter article on this subject. My read is that he’s calling for either a Constitutional convention or a series of amendments. I would not oppose either although I prefer amending to any replacing.

    As much as I agree with the methodology, I disagree with Fareed’s suggested changes. He suggests abolishing the electoral college. I oppose this because the electoral college forces candidates to build a national consensus rather than running up huge majorities among their base. And it’s really only made a difference twice in American history, so I really don’t see the crushing need to change it now.

    He also suggests changing the Senate:

    The structure of the Senate is even more undemocratic, with Wisconsin’s six million inhabitants getting the same representation in the Senate as California’s 36 million people. That’s not exactly one man, one vote.

    It’s not intended to be. The senators are supposed to represent the states, not the people. If you proportion the senators by population, what is the point of the Senate? It becomes just a second House with bigger egos and longer speeches. Supporters of changing the Senate often resort to ridiculous arguments, trying to find the minimum number of Senators who could stop a piece of legislation and claiming this lets 1/3 of the country veto the wishes of the other 2/3. This argument came up a lot with Obamacare. But it’s a bogus argument since (a) even with Obamacare, the national consensus was against it; (b) we’re not a democracy.

    Anyway, these two articles got me thinking about what kind of Constitutional Amendments I would like to see, assuming our political class could be bothered to invest the energy. Use the comments to suggest your own, but here’s a few I’d go for:

    Balanced Budget Amendment: The GOP almost got this in 1995 and I wish it would come up again. I’d prefer one with a supermajority requirement on tax hikes and maybe an outlet in case of war or national emergency. But it’s clear that someone’s hand has to be forced on this.

    Right to Privacy Amendment: Phrased like so: “The right of the people to engage in private activity shall only be infringed when Congress can demonstrate a compelling public need.” This would simply clarify the 9th and 10th Amendments, shifting the null hypothesis to that of freedom. Today, we have to show that a bad law violates our fundamental freedom. Under this amendment, we would be assumed to be fundamentally free and Congress would have to justify breaking that freedom.

    Term Limits: This is one of the more controversial. The usual counter-arguments, however, don’t carry much weight with me. Yes, the people can vote out our Congressmen. However, the system has been so rigged through subsidies of incumbents and gerrymandering that it’s extremely difficult. And the argument that we should have an experienced Congress just crosses me as bizarre. The last ten years have seen some of the most experienced Congresses in history drive the country into a brick wall. An experienced legislator is like an experienced thief; we don’t really need them.

    When I lived in San Antonio, we had term limits on the city council. It was awesome. They were much more conservative than any city council I’d ever seen. Conservative in the “get off my lawn sense” of keeping taxes law, government small and not subsidizing stupid “projects”. What term limits are is corruption limits.

    Plain English Amendment: I ripped this one off of Heinlein. It’s a simple fact that many of our laws are so vague and written in such opaque lawyerese, that people can violate the law without knowing it. Hell, the fucking IRS doesn’t know our tax code. To me, this makes the laws of questionable validity. No one would tolerate it if laws were written in a secret code that no one understood and you would only know if you broke them by being jailed. Yet this is effectively what we have. I would love to see an amendment that would require laws be comprehensible to the citizens to whom they apply. If a hundred college graduates read the law and only about three understand what it says, that law needs to go back to the word processor.

    There are other amendments floating around there that I am vehemently opposed to. You can probably guess them: the flag burning amendment, the anti-gay marriage amendment, amendments to enfranchise criminals or alter the electoral college or senate composition, an amendment to repeal birthright citizenship.

    Anyway, that’s my … Jesus, how long did this post get? … my dollar and fifty three cents.

    RIAA doesn’t like the 4th either

    Well, it looks like the recent issues with the fourth amendment and protections versus search & seizure has come to the attention of the RIAA, who has decided they’d really like to get in on some of that constitution-violating, as is so often their wont.

    The RIAA has been pushing the state of California to pass a new law that would allow completely warrantless searches for law enforcement, allowing them to enter and search any CD or DVD manufacturing plant without either notice or a court order.

    As we’ve seen repeatedly, Obama is the RIAA’s man, so if necessary I’m sure they can count on him to back this for them. (I still laugh at remembering the internet hipsters who seemed to think that Obama’s election would mean a T1 line with full torrent speed in every house and free pot to smoke everyday.)

    But the RIAA’s justification for pushing for these warrantless searches?

    The common trait, the trade group contended, was that the businesses were in “closely regulated” industries in which “the pervasiveness and regularity of the government’s regulation reduces the owner’s expectation of privacy in his business records.”

    So. Just to make that clear. The RIAA itself is saying that the government has eroded the fourth amendment to the point that grabbing a firehose and spraying down the mud isn’t going to hurt at this point. I mean, this is not an exaggeration, that is actually what they’re saying. “Well, you already let the government boss you around and get in your business. Why not some more?”

    “We’re literally talking about walking into a plant, walking up to the line and ensuring that, indeed, the discs are in compliance,” he said. “I don’t think the scope of the search is something a regulator needs to be worried about.”

    Those are the actual words of Marcus Cohen, RIAA executive. That is actually what he thinks will allay people’s fears. “Oh, we’ll just walk in and do what we like. What’s the big deal about that?” Nothing, if you’re the hero of a friggin’ console RPG and are used to wandering into random peoples’ homes and rifling through their belongings for stuff you need.

    And despite the fact that it’s essentially admitted to be unconstitutional, I’m sure it will come as an utter shock to all of you that they nevertheless have the outright support of Democrat senator Alex Padilla behind them and it’s already passed multiple committees. A Democrat not giving a shit about the constitution, and pushing through unconstitutional laws? A California Democrat, at that? I know I was shaken to my core by such revelations.

    Apparently we on the right have spent so much time worrying about the Second that we didn’t notice the Fourth was wounded until it was down and surrounded by hungry wolves. Or maybe we’re to blame for letting it take its licks in the first place because we wound up “okay” with it getting a few kicks when it served the “greater good”. But whoever put it in its current position, it’s pretty clear that the left has smelled blood. The Constitution, and specifically the Bill of Rights, was put there to outline and limit the government’s power, and as the Democrats have shown (and occasionally stated, when they got a little too honest), “limits on government power” is a dirty phrase considered somewhere on par with “your mother sucks cocks in Hell”. If they can effectively render one amendment from the bill of rights null and void, then that means the other ones are fair game. It would be precedent, just like the RIAA is using precedent to say “It’s already been broken, why not break it more?”

    Now the question becomes, are we going to fight off the wolves, or just hope that there’s something left when they’re done eating?