Article 2, Section 1, Clauses 2 and 3: Records of the Federal Convention

Article 2, Section 1, Clauses 2 and 3: Records of the Federal Convention

Notes on the Constitutional Convention, in particular leading up to the Electoral College.

Originalism and the electoral-college conundrum - The Washington Post

Originalism and the electoral-college conundrum - The Washington Post

This is the problem of the so-called “faithless Elector,” and, as everyone is aware, it is receiving a great deal more attention these days than possibly at any time in the history of our republic. Law professor Lawrence Lessig has famously called on electors to exercise their judgment and to cast their ballots in accordance with the popular-vote majority won by Hillary Clinton.

Putting aside — just for a moment — the question of whether this is a good idea, it does seem to me that the constitutionality of such an action can’t be seriously questioned — at least, not if you’re an originalist. In the original constitutional scheme, electors really were supposed to choose the president, exercising their discretion and judgment to find the best person for the job. Being chosen as an elector was a high public office (though it had only a single function, and the appointment terminated as soon as that one function had been performed), and the vote for electors was one to be taken quite seriously, because you were picking the people who would choose the next president.

If you question any of this, you should read Robert Delahunty’s terrific explication of the history of the electoral “college” (a phrase that, incidentally, was not used in the Constitution, nor in the ratification debates). Delahunty shows — conclusively and quite magisterially, in my view — that the original intent of the Constitution, supported by its text and overall structure, not only permits but also “requires” presidential electors to exercise “discretion and independent judgment” in casting their ballots.

....

Should the electors actually take this course? And if so, for whom should they vote?

I agree with co-blogger Orin Kerr’s critique of Lessig’s view that the electors should “uphold the fundamental principle of one person, one vote” by voting for Clinton because she won a substantial popular-vote plurality. As Orin puts it, there’s a “considerable clash” between the originalist idea that electors should exercise their independent judgment — that they should be, in Lessig’s nice phrase, “citizens exercising judgment,  not cogs turning a wheel” — and Lessig’s companion idea of “electors following the nationwide [plurality] vote.”

On the other hand, had I been chosen as an elector and were exercising my own independent judgment and discretion in the matter, I certainly would think it eminently reasonable to take into account the fact that a substantial plurality of my fellow citizens appear to view Clinton as qualified to be president. Added to the fact that a number of other candidates are manifestly unqualified, and are, in my judgment, a threat to our constitutional democracy, I’d certainly give faithlessness a long, hard look.

From the comments:

Why bother learning anything about the Constitution and our form of government if you can bury your head in the sand and pretend it's all partisan nonsense?

The ‘Excellent’ Electoral College - WSJ

The ‘Excellent’ Electoral College - WSJ

Hillary Clinton looks likely to win the popular vote for President, and so arrive the perennial calls for a direct popular election. Even Donald Trump said on CBS’s “60 Minutes” this weekend that he’d prefer “simple votes.” But the Electoral College, for all its imperfections, is still a better way to choose a President.

The fact that Mrs. Clinton won the popular vote may console Democrats, but if that were the measure of victory we would have had a different campaign. Both candidates would have parked themselves in populous states like New York, and Mr. Trump would have spent weeks in Texas. As it is, the Republican nominee didn’t compete in Illinois or California, allowing Mrs. Clinton to pile up big majorities. Mrs. Clinton’s advantage in California alone—more than 2.7 million votes—accounts for more than her projected margin of victory of about two million.

One feature of the Electoral College is that it picks a decisive winner as early as possible. Mr. Trump’s victory across the Midwest gave him a solid majority in the Electoral College that everyone acknowledged. There was no waiting for absentee ballots or recounts. If you think a recount in one state like Florida in 2000 was corrosive, imagine a tight popular vote with contested results in 50 states and thousands of counties. The opportunities for fraud, or claims of fraud, would be endless.

The system also tends to narrow the field to two candidates who have a plausible path to 270 electoral votes. This is a weakness when the major parties produce two unpopular nominees, but that is an argument for the parties choosing better candidates. The Electoral College reduces the relevance of fringe candidates who could otherwise force themselves into importance in a national poll. Most voters in the end abandon third-party candidates so they won’t “waste” their vote. That’s what happened this year as voters moved away from Gary Johnson or Jill Stein.

Democrats gripe that their candidate won the popular vote in six of the past seven presidential elections but won only four. Yet before Tuesday they were saying Mrs. Clinton had the Electoral College advantage even if she lost the popular vote. They could be right in the future. The point for the country is whether the Electoral College helps elect a clear and legitimate winner, and this year it did so again.

Larry Arnn discusses the constitutional underpinnings of the Electoral College nearby. The Founders selected the system in part to moderate the worst impulses of a concentrated majority. Even after last week’s political earthquake, Alexander Hamilton’s words for the Electoral College in Federalist No. 68 hold up: “If the manner of it be not perfect, it is at least excellent.”

The Electoral College Is Anything But Outdated

In a deeply divided nation, a candidate shouldn’t be able to win by appealing only to urban sophisticates.

By LARRY P. ARNN
Nov. 14, 2016

The outrage from Hillary Clinton supporters came immediately: Donald Trump might have won the Electoral College, but he appears to have lost the popular vote. This was said to be a violation of democracy, one that defied the principle of “one man, one vote.” A Yale professor slandered the Founders by telling the website Vox that the Electoral College was created to protect slavery.

We can think about this better if we understand two things: What does the Electoral College do, and why does it do it?

On Dec. 19, the electors of every state and the District of Columbia will meet. Each state has the same number of electors as it does U.S. senators and representatives combined. The state legislature decides how the electors are selected.

The chosen electors are bound by custom everywhere and by law in many states to support the presidential candidate who won their state’s popular vote. If they fail to vote this way, they will be “faithless electors.” This has happened but rarely in the history of the presidency.

Everything about this process is as the Constitution directs, with the exception of the last bit. Nothing in the founding document requires electors to support the candidate who wins the popular vote in their state. In America’s early years many states did not even conduct popular presidential elections.

Instead electors were picked by state legislatures or by governors. The Framers had the idea that the electors, in choosing a president, would vote their consciences after deep discussion—and sometimes this happened. Often, however, electors were selected because they had declared support for a particular candidate.

As the practice of holding a popular vote spread, it was natural that the electors would follow those results. Still, the Electoral College continues to recognize that Americans vote by state—in the same way that they elect the Senate and the House, and the same way that they voted those many years ago to ratify the Constitution.

But now there is a national movement to require that electors support the presidential candidate who wins the national popular vote. The proposal, called the National Popular Vote Interstate Compact, has been passed by 10 states and the District of Columbia. Implementing this practice would be a disaster.

Consider for a minute why the Electoral College was invented. Although it is odd, it is also a plain expression of the Constitution, part of the structure that has made America’s founding document the best and longest lived in history.

The Constitution reflects the paradox of human nature: First, that we alone among earthly things may exercise our own volition; second, that sometimes we exercise such power badly. This is why we require laws to protect our rights, as well as restraints upon those who make and enforce those laws.

The Constitution is paradoxical most of all about power, which it grants and withholds, bestows and limits, aggregates and divides, liberates and restrains. Elections are staggered, so as to distribute them across time. The founding document also divides power across space; the people grant a share of their natural authority to the federal government, but another share to the states where they live.

This innovation is most directly responsible for the greatness of the United States. Think what the Founders achieved: They invented a way of governing, and they extended it without benefit of kings or colonies across a vast continent, bigger than they could imagine, until they got to the other side 30 years later. The magnificent Northwest Ordinance granted free government to the territories, then representative and independent state government thereafter. Ruled from Washington, the nation could never have settled this land in freedom nor made it so strong.

The practical political equality that the American people have achieved depends entirely upon their ability to spread political authority across a vast area. In American political life, it matters how many people are in favor of a given thing. It also matters where they live.

Mr. Trump joins John Quincy Adams,Rutherford B. Hayes,Benjamin Harrison and George W. Bush as the only presidents who won without the popular vote. After 2000, this is the second time in recent years—a product of the deep and wide division in America between the urban and the rural, the sophisticated and the rustic, the cosmopolitan and the local.

It is a shame that the winner this year, Mr. Trump, lost the popular vote by a whisker. But it would be as much or more a shame if Mrs. Clinton had prevailed despite massively losing the geographic vote, the vote across space, the vote that reflects the different ways that Americans live.

We forget that it is a historical rarity to have an executive strong enough to do the job but still responsible to the people he governs. The laws in the U.S. have worked that miracle for longer than anywhere else. Remember that the Electoral College helps establish the ground upon which the American people must talk with each other, while ensuring that they are not ruled as colonies from a bunch of blue capitals, nor from a bunch of red ones.

The Modern Feminist Rejection of Constitutional Government

The Modern Feminist Rejection of Constitutional Government


Many people assume that it is modern feminism, not the Constitution, that has secured freedom and political equality for women. In reality, the Constitution has always been compatible with women’s equal political rights and provides a framework for the expansion of those rights. Although contemporary feminists ostensibly pursue the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, the feminist movement has largely strayed from this narrow mission in favor of a far more radical agenda. In the name of “equality,” it has sought to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity. Achieving these goals would require a vast expansion of centralized government, the redefinition of freedom, and the destruction of equal protection and due process of law. This movement undermines America’s constitutional system, which limits the scope and character of the law with a view to protecting the individual rights of both men and women.

The Modern Feminist Rejection of Constitutional Government

The Modern Feminist Rejection of Constitutional Government


Many people assume that it is modern feminism, not the Constitution, that has secured freedom and political equality for women. In reality, the Constitution has always been compatible with women’s equal political rights and provides a framework for the expansion of those rights. Although contemporary feminists ostensibly pursue the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, the feminist movement has largely strayed from this narrow mission in favor of a far more radical agenda. In the name of “equality,” it has sought to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity. Achieving these goals would require a vast expansion of centralized government, the redefinition of freedom, and the destruction of equal protection and due process of law. This movement undermines America’s constitutional system, which limits the scope and character of the law with a view to protecting the individual rights of both men and women.

The Modern Feminist Rejection of Constitutional Government

The Modern Feminist Rejection of Constitutional Government


Many people assume that it is modern feminism, not the Constitution, that has secured freedom and political equality for women. In reality, the Constitution has always been compatible with women’s equal political rights and provides a framework for the expansion of those rights. Although contemporary feminists ostensibly pursue the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, the feminist movement has largely strayed from this narrow mission in favor of a far more radical agenda. In the name of “equality,” it has sought to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity. Achieving these goals would require a vast expansion of centralized government, the redefinition of freedom, and the destruction of equal protection and due process of law. This movement undermines America’s constitutional system, which limits the scope and character of the law with a view to protecting the individual rights of both men and women.

Betsy's Page: Cruising the Web

Betsy's Page: Cruising the Web

Lengthy post.  Obama vs the Constitution.
What if Bush had done any of this?

David Harsanyi has a very good question that should be posed to every Democrat who has turned a blind eye to everything that Obama has done to extend the power of the executive at the expense of Congress.

Enforce laws at your political leisure. Name recess appointments when there’s no recess. Legislate through regulation. Rewrite environmental laws. Rewrite immigration policy. Rewrite tax legislation. Bomb Libya. Bomb Syria. All by fiat. All good. The only question now is: what can’t Barack Obama do without Congress?

Every day seems to bring forth another story about what Obmaa has done or intends to do to ignore the constitutional limitations on the power of the president. A constitution, by the way, that Barack Obama swore to preserve, protect, and defend. The most recent was the news that he wants to forge a sweeping multi-national agreement on climate change without submitting it to the Senate. And the only excuse given is that the issue is so important and the Senate won't act. As if no president has ever faced a recalcitrant Congress.

“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that’s what I intend to reverse when I’m President of the United States of America,” then-candidate Obama declared years ago. You can imagine what might have transpired if George Bush had argued that a lack of seriousness regarding a “broken” Social Security program – and the obstruction of his reform efforts – meant that Democrats had ceded the political field on the issue and should be sidestepped. It might not have gone over that well. Then again, liberal pundits seem to be under the impression that the issues we face today are the most significant in the history of mankind. Every liberal hobbyhorse becomes a moral imperative. And as frustration mounts, the abuses grow and the excuses get uglier.

But, apparently, there is some invisible clause, as Charles C.W. Cooke writes, in the Constitution that allows Democrats to ignore the limitations it puts on the presidency - the "We Can't Wait" clause.

Justifying his infringements, the president typically submits that Congress has in some way abandoned its role, and that he is obliged by expedience to step in. This asseveration rests unsteadily upon the false presumption that Congress’s role is to agree with the executive branch, rather than to make law. It is not. Even if we were to agree wholeheartedly with Barack Obama that Congress’s judgment is poor, it would remain the case that there is no provision in the Constitution that makes the legislature’s absolute role conditional upon its good sense. On the contrary: If the president can’t get Congress to agree to what he legally needs them to agree to, he doesn’t get to do what he wants to do. This is so whether Congress is packed with angels or with clowns. It is so whether Congress adores the president or loathes him, whether it is active and engaged, and whether it is idle and lackadaisical. And — crucially — it is so whether Congress is popular or it is unpopular. Public opinion matters in the American system come election time, mass plebiscites serving as the basis by which our representatives are chosen and our sentiments established into law. But it has no bearing on the day-to-day legal operation of the government, nor upon the integrity of the rules that govern that operation. If one of the elected branches proves recalcitrant, steadfastly ignoring what the voters want, the remedy is electoral, not legal. The integrity of the constitutional order, suffice it to say, is not contingent upon the transient public mood. That way lies chaos.

Knowing that appeals to raw power are jarring to the average ear, those who have taken to defending the president’s imperialism tend instead to sell their wares by introducing complexity where it does not belong. It is the case that some parts of our Constitution are vague and open to interpretation. But not all. Alas, over the last six years, we have been told that there is considerable nuance even in those portions that have been taken for more than two centuries to be utterly straightforward. Does the president have to faithfully execute the laws as they are written? That, apparently, is complicated. Does the ratification of treaties really work in the manner that the Constitution prescribes? Ooh, a tricky one! What about Article I, which makes it clear that all legislative powers belong to the legislature? Sure, but only if Congress behaves itself. Must the executive branch adhere to the established budget and borrowing process, or can it mint trillion-dollar platinum coins if Congress won’t acquiesce with its demands? This too, it seems, is unclear. Can the president deem the Senate to be in recess and make appointments without them? Why not, man? So deeply has this rot set in — and so ready have political opportunists proved themselves to abdicate their responsibilities in favor of political victory — that we have been treated to the sight of a three-term senator and majority whip claiming with a straight face that the president can merely “borrow” congressional power if it is not forthcoming.

He must do no such thing, for an assault on any part of our settlement is an assault on the whole. To the extent that Obama has been accorded political power, he may use it, and use it to the fullest. Beyond that, he is tightly and rightly circumscribed in his authority. As a matter of both propriety and legal rectitude, there can be no place within the American constitutional order for a president to menace Congress with threats. Not now, not tomorrow, not ever. Like Sir Thomas More in A Man for All Seasons, Barack Obama would profit from the recognition that it is for his own good that he is expected to give the Devil the benefit of the law. By demonizing one’s opponents and making legal excuses in result, it is easy to make the men in the cheap seats applaud and holler. But before long, somebody else will be taking the oath, and wondering, as he promise the best of his ability, just what he might put over on the rest.

Seth Lipsky explains why the procedures set up in the Constitution for approving treaties makes so much sense.

In recent years it has grown apparent that our country is in what I like to call a “constitutional moment,” and this example is a humdinger. Presidents are perfectly entitled to sign treaties that haven’t been approved by the Senate. That’s part of the process. They ink all sorts of sketchy stuff, but it can’t become binding as supreme law of the land until it gets through the Senate.

The Senate gives it a chance to simmer. Hearings are held. People with interests get to testify. The Senate is where the states, key parties in the American contract, get their say. Sometimes, treaties don’t get ratified and are laid aside. This happened to the Strategic Arms Limitation Treaty known as SALT II. President Carter signed it, but the Senate didn’t trust the Soviet boss at the time, Leonid Brezhnev, nor anyone else in the Kremlin camarilla. So it refused to ratify the treaty. No one was the worse for wear.

America worked for years on the Law of the Sea Treaty, a vast giveaway of oceanic wealth that we had the best technology to exploit, but the measure didn’t get to first base in the Senate, either. There are still politicians and diplomats and lawyers out there hoping to persuade the Senate to act. Fair enough. I wouldn’t ratify the Law of the Sea Treaty for all the sardines in the ocean. But trying to convince the Senate is fair enough. If it’s one thing to try to persuade the Senate, it’s another thing to take a treaty that the Senate is so clearly unwilling to ratify, as with global warming, and enter into a conspiracy to dodge the Senate and evade the Constitution — a document that every public official in our country is sworn to support.

This is basic Civics 101. My 10th grade students all understand this. You would think that someone who prides himself on having been a professor of Constitutional Law would understand this. And, of course, he does understand it. But he has just decided that if he wants to do something and he can't get the Senate for a treaty or the whole of Congress for a law to go along, then dang it he'll just have to do it himself and blame the Republicans for his being forced to ignore the Constitution. And just how does this differ from the sort of tyranny that the Constitutional checks and balances were designed to protect against?

The Hobby Lobby majority, summarized in (relatively) plain English - The Washington Post

The Hobby Lobby majority, summarized in (relatively) plain English - The Washington Post

1. Congress has decided that religious objectors may go to court to demand religious exemptions from federal laws, when the law makes them do things that they view as religiously forbidden. That’s not required as a constitutional matter under the Free Exercise Clause; the Court decided that in Employment Division v. Smith (1990). But in enacting the Religious Freedom Restoration Act (RFRA), Congress chose to give religious objectors a statutory right to such exemptions, at least in many cases:

Government shall not substantially burden a person’s exercise of religion

even if the burden results from a rule of general applicability, …

[unless the Government] demonstrates that application of the burden to the person …

is the least restrictive means of furthering [a] compelling governmental interest.

2. RFRA doesn’t exclude laws which impose a burden on closely held religious corporations. To be sure, a corporation is a legal fiction; it cannot itself practice religion, or for that matter do anything else. It acts only through people.

But — precisely because a corporation is just a legal fiction — when a law requires such a corporation to do something that its owners believe to be religiously forbidden, it burdens the religious freedom of those real owners, and not just of the fictional corporation itself. “[P]rotecting the free-exercise rights of corporations like Hobby Lobby … protects the religious liberty of the humans who own and control those companies.”

3. The owners of Hobby Lobby sincerely believe that it’s wrong for them to buy their employees insurance plans that they see as supporting abortion. They have no objection to contraception as such, but they view contraceptives that prevent the implantation of a fertilized egg as tantamount to abortion drugs.

The government acknowledges that its regulations require businesses to pay for such contraceptives (on pain of substantial monetary penalties). Therefore the law substantially burdens the owners’ religious practices, by requiring them to do something they think religiously forbidden.

To be sure, the law doesn’t require the employers to personally get abortions or perform abortions. But the employers sincerely believe that even buying insurance policies that pay for such abortions is religiously forbidden complicity in abortion.

It’s not for courts to second-guess the reasonableness of such judgments about how to define religiously forbidden complicity. “[T]he Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

4. Of course, the legal system has many rules that require people to do what they think religiously wrong (or, the legal equivalent, to not do what they think religiously required). Not all religious exemptions can be granted. RFRA provides that, if denying the exemption is really the least restrictive means of serving a compelling government interest, a court should indeed deny the exemption.

But “[t]he least-restrictive-means standard is exceptionally demanding.” Under RFRA, if the government can — even by changing the way its programs operate, and at some cost to taxpayers — both adequately serve its compelling interests and provide an exemption to religious objectors, then it must do so.

And here, the government can indeed both provide free contraceptives (as the regulations under the Congressionally enacted Affordable Care Act provide) and exempt religious objectors (as the Congressionally enacted Religious Freedom Restoration Act provides).

First, the government could pay for the contraceptives directly. Though that would cost taxpayer money, religious exemptions sometimes do cost money, and the extra cost would be a tiny fraction of the ACA’s $130 billion expense per year. Indeed, RFRA’s sister statute, the Religious Land Use and Institutionalized Persons Act, provides that it “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”

Second, the government has already exempted some religious nonprofits from the law. Under this exemption, insurers would (1) exclude contraceptive coverage from the employer-paid health plan, and (2) separately pay for contraceptive coverage that the insurer would provide directly to the employees. (The government has concluded this is fair to insurers because the cost to them of contraceptives would be balanced by the savings from lower pregnancy costs and other health costs.) A similar plan is available for self-insured religious nonprofits.

These exemptions could easily be extended to for-profit religious objectors such as Hobby Lobby. Such an extension would mean the government can still ensure that contraceptives are provided at no cost to patients, but Hobby Lobby and similar objectors wouldn’t be required to do what they think their religions forbid.

5. This sort of accommodation is what Congress has mandated. When both the government’s compelling interests and religious objectors’ religious beliefs can be adequately accommodated, Congress said (in enacting RFRA) that they should be accommodated.

But Congress also said that these decisions must turn on the facts of each exemption request, and the options available for accommodating such accommodation requests. In future cases — for instance, ones involving race discrimination in employment, or insurance coverage for vaccination or blood transfusions — the result might be different.

It might not be possible in those cases (as it is in this case) to adequately accommodate both the government interests and the religious objections. If that’s so, then those religious exemptions would not have to be granted. Wisely or not, Congress has required courts to sort through religious exemption requests, granting some and denying others. This is what the Supreme Court has done here.

The Militia Myth: Understanding the Language of the 2nd Amendment | Somewhat Reasonable

The Militia Myth: Understanding the Language of the 2nd Amendment | Somewhat Reasonable

The first argument often rolled out by gun-grabbers is a textual one, claiming that the Second Amendment itself does not actually defend individuals’ right to keep and bear arms, but instead outlines the need for an armed “well-regulated militia.” According to progressives, that first phrase, “A well regulated militia being necessary to the security of a free state,” indicates that the purpose of the amendment is to establish and maintain a regulated militia whose purpose is to defend the state. On this interpretation, the amendment does not secure the right of individuals to own weapons as individuals.

There are two counters to this claim that demonstrate how facile it is. The first argument is simply a matter of understanding the grammar of the actual text of the Second Amendment. The first phrase is under proper grammar, and as confirmed by the United States Supreme Court, a prefatory phrase. It is not a statement of the sole purpose of the right to bear arms, but is an understanding of the way in which the right would be used in the defense of the state.

Furthermore, the Second Amendment clearly identifies right as belonging to ‘the people.’ This identification clearly shows to whom the right belongs. As Justice Antonin Scalia pointed out in one of his most magisterial opinions:

“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.”

If “the people” does not apply to all the individual citizens in the Second Amendment, then how can it do so for those other amendments? The meaning of the statement is clear, despite the obfuscation of progressive activism.

The second counterargument relies on examining what the framers of the Constitution meant. Fortunately for supporters of the right to bear arms, and unfortunately for their opponents, many of the people who wrote the Constitution wrote elsewhere about its meaning. Many of the founding fathers, including Thomas Jefferson, James Madison, and Samuel Adams all explicitly endorsed individual ownership of arms. Even Alexander Hamilton, the founder most in favor of big government and a standing army, agreed that private citizens ought to be allowed to own weapons.

The founders were also clear about what they meant by the term militia. Richard Henry Leestated it very succinctly: “A militia, when properly formed, are in fact the people themselves… and include all men capable of bearing arms.” In other words, whether a militia is the proper holder of arms or the people is irrelevant, because they are one and the same. Only by ignoring the words of the founders, as well as the basic rules of grammar, can the progressives’ case even appear valid. Once the ignorance is cured, their case crumbles to dust.

Some progressives pursue a different tack and argue that the defensive purpose of the Second Amendment has been made obsolete by the establishment of a standing army. There are two critical problems with this line of reasoning. First, the presence of standing army was exactly the sort of overbearing and asymmetric power the Second Amendment was meant to be a defense against, so it seems to make little sense that the right would somehow be invalidated by this.

Second, Americans are now more than ever subject to the possibility of being “called up” to military service. Conscription was not even considered by the founders as a means of raising troops. Today most citizens are required to be registered in the Selective Service system. The pressures of over-mighty government and the possibility of being drafted serve as joint forces in favor of the maintenance of the Second Amendment rights as they are now understood.

Another bizarre argument wheeled out in recent years that has a similar line of reasoning is the claim that the right is moot with regard to overthrowing domestic tyrants or oppressors because the federal government is so asymmetrically powerful that any such resistance would be quickly dealt with. This argument is laughable for two reasons. First, it seems to suggest that the force discrepancy is so asymmetric that people ought to just give up the weapons they have. Yet that could only further diminish the capacity of citizens to defend themselves, both against criminals and a potentially aggressive government.

Second, the idea that asymmetries of power render a group militarily helpless is little better than a joke. The lessons of Vietnam, Iraq, and Afghanistan ought to be enough to put to rest the idea that a smaller, less well-armed force cannot put up a lasting resistance to a mighty military.

In the end, it is important to realize that the Second Amendment is just as relevant today as it ever was. Human nature has hardly changed in 200 years, and the rights we possess are no less inalienable or self-evident. Anyone trying to erode our constitutionally-enshrined rights should be immediately held suspect. If we do not protect our own rights, who will?

Bookworm Room � The House’s refusal to fund Obamacare is entirely constitutional — and James Madison personally approves this message

Link: http://www.bookwormroom.com/2013/10/03/the-houses-refusal-to-fund-obamacare-is-entirely-constitutional-and-james-madison-personally-approves-this-message/

My stock response to all those liberal Facebook friends who have insisted that the House is "unconstitutionally" holding Obamacare hostage, is that the Founders named it the "House of Representatives" and gave it the power of the purse for a reason.
....
The above response came off the top of my head.  If I had studied the Federalist papers recently, however, I could simply have quoted James Madison. one of the Constitution's primary architects, writing in Federalist No. 58 (and a groveling h/t to Tom Elias, of The New Editor, for this brilliant find):

The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.  (Emphasis added.)

What the House is doing is entirely constitutional, and we conservatives should be doing our best to trumpet that fact.  Moreover, given the federal takeover of the Lincoln Memorial, we should remind everyone that we live in a nation guaranteed "government of the people, by the people, for the people."  Unlike a monarchy, the federal government doesn't own the properties it is denying us.  Instead, we own the federal government.  The government is merely a caretaker, and a pretty damn surly, ineffectual, greedy, and tyrannical one at that.

And there's also this:
http://nationalreview.com/article/360228/origins-origination-clause-andrew-c-mccarthy

In a Bench Memos post, my friend Matt Franck objects to the contention in my column for last weekend that the Constitution's Origination Clause (Art. I, Sec. 7) gives the House of Representatives primacy over spending as well as taxing. Matt claims that my interpretation is bereft of historical support, a defect I'm said to camouflage by an extravagant reading of an "at best . . . ambiguous" passage in Madison's Federalist No. 58.
It is Matt's history, though, that is incomplete. As Mark Steyn observes, there is a rich Anglo-American tradition of vesting authority over not merely taxing but also spending in the legislative body closest to the people. This tradition, stretching back nearly to the Magna Carta, inspired the Origination Clause. It also informed Madison, whose ruminations, besides being far from ambiguous on the House's power of the purse, are entitled to great weight — not only because he was among the Constitution's chief architects but also because his explication of the Framers' design helped induce skeptics of centralized government and its tyrannical proclivities to adopt the Constitution.
Plainly, Matt is correct that the Origination Clause refers to "bills for raising revenue." From the time it was debated at the Philadelphia convention, however, the concept at issue clearly referred to more than tax bills. It was about reposing in the people, through their most immediately accountable representatives, the power of the purse. Indeed, the term persistently used throughout the Framers' debates was "money bills" — the phrase used by Elbridge Gerry, perhaps the principal advocate of the Origination Clause, when (as the debate records recount) he "moved to restrain the Senatorial branch from originating money bills. The other branch [i.e., the House] was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings."
...The Heritage Foundation's Guide to the Constitution, for example, notes that the clause was meant to be "consistent with the English requirement that money bills must commence in the House of Commons." Traditionally, that requirement aggregated taxing with spending — the "power over the purse" — which the Framers sought to repose "with the legislative body closer to the people."
Similarly, the Annenberg Institute for Civics, in its series on the Constitution, instructs students that the Clause means "the House of Representatives must begin the process when it comes to raising and spending money. It is the chamber where all taxing and spending bills start" (emphasis added)...

The problem is, though, the Republicans don't seem to remember their pledge to the Constitution.
http://nationalreview.com/article/359767/how-constitutionally-fund-government-andrew-c-mccarthy

A Response to Professor Seidman: Our American Constitution

Link: http://constitution.i2i.org/2013/01/04/a-response-to-professor-seidman/ (via shareaholic.com)

A Response to Professor Seidman

...there always have been American Tories—people who chafe at restraints on central power and would prefer a British-style government. In recent years, as political “progressives” have gradually lost the scholarly battle over constitutional interpretation, some have stopped pretending the Constitution means whatever they want it to, and have begun to trash the document itself.....Consider, by contrast, the record of the United States during the 140 years in which the Constitution’s limits on federal power were usually respected. During this period of limited government and great personal freedom, the United States became the most successful nation in the history of the planet. Inflation was low. The budget was usually balanced. The foundation of the modern economy was laid. It was a period of unprecedented innovation and unprecedented advances in health, life expectancy, and living standards. It saw the end of slavery and astounding progress for women and even for the most disadvantaged minorities. In other words, it was adherence to the Constitution, not disregard for it, that enabled America (in Professor Seidman’s words) to “grow and prosper.”
Professor Seidman seems to assume that politicians can be trusted to make “considered judgments” and act “on the merits,” and that the public does not need to impose outside constitutional restraints on their power (except, perhaps, through elections). The Founders were wiser. They knew that the entire history of humankind suggests the opposite—as, in fact, does the current fiscal crisis. If Mr. Seidman thinks the United Kingdom is a stronger, freer, less dysfunctional, and more prosperous country because of its unwritten constitution, he should live there for a while, as I have. Britain’s relative decline has been precipitous over the past century. Without the support of America, it is doubtful Britain would have survived as a free country.

George Will on the People’s Rights Amendment

George Will on the People’s Rights Amendment

via The Volokh Conspiracy by Ilya Somin on 5/5/12

(Ilya Somin)

George Will recently published a good Washington Post column on the ill-conceived People's Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government's power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern's proposal vindicates those who say that most campaign-finance "reforms" are incompatible with the First Amendment…

His "People's Rights Amendment" declares that the Constitution protects only the rights of "natural persons," not such persons organized in corporations…

McGovern stresses that his amendment decrees that "all corporate entities — for-profit and nonprofit alike" — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern's amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern's amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern's scythe would mow down the Fourth and Fifth Amendments, as well as the First.

One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples' Rights Amendment.

Jeffrey Toobin on Citizens United

Jeffrey Toobin on Citizens United

via The Volokh Conspiracy by Jonathan H. Adler on 5/14/12

(Jonathan H. Adler)
The latest New Yorker has an extensive excerpt of Jeffrey Toobin's forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court's Citizens United decision. The story, "Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision," is everything you'd expect from a Toobin piece. It's engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin's broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

The heart of Toobin's article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy's concurrence apparently swayed enough of the court's conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court's liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin dwells on Justice Stevens' complaint that the Court's broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin's own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.
Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government's fate.

Since McCain-Feingold forbade the broadcast of "electronic communications" shortly before elections, this was a case about movies and television commercials. What else might the law regulate? "Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?" Alito said. Could the law limit a corporation from "providing the same thing in a book? Would the Constitution permit the restriction of all those as well?"

Yes, Stewart said: "Those could have been applied to additional media as well."

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

"That's pretty incredible," Alito responded. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?"

"I'm not saying it could be banned," Stewart replied, trying to recover. "I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—" But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart's oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It's true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute's language could apply to "full-length books" and that there would, in the government's view, be no problem with banning corporate-funded pamphlets.
Like many of the decision's critics, Toobin suggests Citizens United is best seen as the product of the "aggressive conservative judicial activism" of Chief Justice Roberts and the court's conservative majority.

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court's own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

As Toobin tells the tale, Citizens United is emblematic of the current Court's assault on precedent and the prerogatives of the political branches. It's a nice story, but it's not true. "Judicial activism" is a notoriously malleable charge, but if "judicial activism" is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least "activist" court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it's not even close. "Activism" is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented "activism," it's not clear what "activism" means.

The most interesting parts of Toobin's article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin's skill as a reporter, but I still have some misgivings. We don't know the identities of Toobin's sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won't know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin's sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court's internal deliberations. Even if Toobin's sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.

In any event, the article is still worth reading — as I am sure Toobin's book will be as well. Some portions will just go down better with a healthy dose of salt.

UPDATE: Tom Goldstein has a similar reaction to Toobin's narrative about Chief Justice Roberts:

The theme of the piece is that Chief Justice Roberts orchestrated the case's metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court's O'Connor era. I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court's rapid movement to the right, the facts reported by Toobin don't seem to support his conclusions about the Chief Justice.

Former AG Meese: Obama’s ‘Recess’ Appointments Are a ‘Constitutional Abuse o...

Former AG Meese: Obama’s ‘Recess’ Appointments Are a ‘Constitutional Abuse of a High Order’

via Big Government by Dr. Susan Berry on 1/7/12

In a Washington Post editorial Thursday, Edwin Meese, the former U.S. Attorney General under President Ronald Reagan, and Todd Gaziano, Director of the Heritage Foundation's Center for Legal and Judicial Studies, wrote that President Obama's unilateral appointment of three individuals to the National Labor Relations Board, and of Richard Cordray to head the new Consumer Financial Protection Bureau, while the Senate was not in recess, is a "breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress."

The authors asserted:

…never before has a president purported to make a "recess" appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

The beauty of this editorial is that Mr. Meese and Mr. Gaziano provide instruction to handle this rogue president who continues to thumb his nose at the Constitution. They continue:

President Obama's flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules…Congressional leaders of both parties must vigorously (though thoughtfully) defend their prerogatives. Senators could filibuster all presidential nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment issue, until Obama rescinds these wrongful appointments. The House or Senate could condition all "must-pass" legislation for the remainder of 2012 on an agreement to rescind these appointments. The House also could require the attorney general to produce legal justification and testify at oversight hearings.

The authors conclude:

If Congress does not resist, the injury is not just to its branch but ultimately to the people.

if we were not already aware, "Congress" includes Minority Leader Nancy Pelosi, who, naturally, praised the president for trampling over her branch of government. Regarding Mr. Obama's power grab, Mrs. Pelosi said, "…we're glad that the president took the lead, went out there, it was bold and made the appointments." (Translation: How else can I get the things I want since I'm no longer Speaker?)
But, "Congress" also includes Speaker John Boehner, whose response to the bird he was just flipped was that the president's action is "bad for jobs." Mr. Boehner said, "This action goes beyond the President's authority, and I expect the courts will find the appointment to be illegitimate." 
So that's it? Just file a lawsuit and get back to the business of the day? No defense of the Constitution, of the separation of powers? No conditions placed on future legislation? No talk of impeachment?
Below are some of the Republican presidential candidates' responses, that were available to date, to the president's heinous actions:

Ron Paul: "By making 'recess' appointments to the Consumer Financial Protection Board (CFPB) and the National Labor Relations Board (NLRB) when Congress is not actually in recess, President Obama has acted in clear disregard of the Constitution…And the President must be called to account for his actions."

Newt Gingrich: "The answer to an imperial president is a Congress which stands on its own rights.  And the correct response to what the president just did would be for the Congress to zero out and refuse to fund the National Labor Relations Board. The National Labor Relations Board now has a majority of members who were never confirmed by the U.S. Senate. This is a clear violation of the spirit of the law, and Congress has an obligation to defend our rights, and the correct way is the power of the purse."

Mitt Romney: "Just back from vacation, President Obama has wasted no time in returning to one of the top items on his agenda: doling out favors to his big labor political allies and giving them a dangerous level of power over businesses and workers.  His recess appointments to the National Labor Relations Board give this unaccountable and out-of-control agency the authority to continue acting in ways that create uncertainty for businesses, drive up their costs, and discourage hiring or investment.  President Obama's preference for partisan politics over economic growth will only hurt the millions of middle class families across the country who lose out every time the union bosses win.  As president, my focus from day one will be on getting our economy turned around by pursuing policies that strengthen rather than stifle job creation."

Rick Santorum: "I hope that the United States Senate does what they're supposed to do, and they should go and even take the president to court. This is not something that the president should get away with."

I know "It's the Economy, Stupid." But, for whatever it's worth, the major issue of the upcoming election is whether our Constitution, and the nation as we know it, endures. In my book, presidents and members of Congress who violate the Constitution, or fail to uphold their oaths to defend it, are, in a word, unelectable.

Why can't lefties be honest about the First Amendment? | Mark Tapscott | Columnists | Washington Examiner

Link:
http://washingtonexaminer.com/opinion/columnists/2011/11/why-can-t-lefties-be-honest-about-first-amendment

... leftists like Reich have been apoplectic since the Citizens United decision, which among much else, affirmed the First Amendment rights of individual Americans associating with each other in corporations (and unions, a fact that Reich conveniently forgets to acknowledge).

Leftists like Reich – and President Obama, with his demagogic attack on the high court as the justices sat in the congressional chamber listening to his 2010 state of the union address – endlessly repeat the falsehood that Citizens United created a new corporate right.

In fact, the Supreme Court has held nearly two dozen times since FDR was in the White House that corporations are associated persons who have constitutional rights. In 1978, for example, the Court said in First National Bank of Boston v Bellotti that it found in the context of ballot measures "no support for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation."

....

Indeed, it is only a short distance between advocating limits on political speech in order to avoid "the appearance of corruption" - or,  as Cass Sustein, Obama's regulatory czar, argues, to correct or prevent "conspiracy theories" in the general populace - and endorsing such limits on newspaper editorials, opinion columns, or Talk Radio commentaries because they, too, allegedly create such an appearance.

Occupy Wall Street: The Implications on the Bill of Rights

Occupy Wall Street: The Implications on the Bill of Rights

via Big Government by Of Thee I Sing 1776 on 11/25/11

For very good and valid reasons, Americans understand the extraordinary importance of the First Amendment to the U.S. Constitution, the right peacefully to assemble for redress of grievances.  That, of course, is the rationale for the Occupy Wall Street ("OWS") movement by which thousands of protestors are encamping in various public places around the country.

Our courts recognize few exceptions for the placing of limits on this exercise of free speech and in fact have themselves studied the issue in cases unrelated to OWS.  Courts recently have been debating whether limits on speech enacted by legislative bodies are constitutional.  As an example, a law prohibiting candidates for public office from lying about their opponents' voting records during campaigns is drawing judicial scrutiny as an unconstitutional prohibition on protected free speech.  This matter is a serious one and whether we agree or not with OWS protestors (or tea party assemblies) we need to treat the subject based on constitutional principles rather than our own political predilections.  So why have the authorities suddenly stirred themselves to action to clean out OWS sites?

For one thing authorities have suddenly recognized some very important public principles:

First, public facilities are being taken over for the benefit of a few people as part of their attempt to advance solely their cause.  Parkland in central cities is very scarce and has been misused by groups who pitch tents from end to end in these parks and prevent (and in some instances intimidate) ordinary citizens from using public land.  Often these tent cities are abandoned during the day while the occupiers leave and go about their regular lives (going to work, going home, attending entertainment venues, etc.)

Recently, there has been a major spike in violence including shootings.  In Oakland protestors succeeded in shutting down the ports, which are a major, job producer in that city.  According to the San Francisco Chronicle "OWS protestors gathered up for their general assembly meeting and withdrew a resolution calling for future demonstrations to remain peaceful.  A faction of the protest group has advocated violence as a 'diversity in tactics' approach to demonstrating."  Deaths have occurred in other cities as well, including Burlington, Vermont.   Secondly, there is an important public health issue that has arisen.  Protestors have been overwhelming the sanitary facilities at nearby businesses, cleaning and relieving themselves at bathrooms not built for such volume.  Finally, city authorities who have appeared to be looking the other way see that they have to take action.

The Weekly Standard on November 5 noted, "[a real] occupation of Wall Street isn't going to happen.  Instead, it is something under which the left marches.  For the left, all politics is about occupation.  One country, one class or one group takes from another.  Politics is seen as national warfare or class struggle, or one group grasping for advantages over some other."

Moreover, Congressman Denny Rehberg summed it all up with an idea to respond to OWS with a call to liberate Wall Street.
We're over-taxed in small business, over-regulated, and over-litigated, and you can pick and choose which ones you want to address, but the government should be trying to lessen the tax burden, lessen the regulatory burden, and get the litigation out of the way," Rehberg said.  More broadly, Liberate Main Street provides a rubric for a conservative agenda that contrasts with Occupy Wall Street.  It would be an agenda that works to foster opportunity, not envy; that seeks change through democratic processes, not mob pressure; that encourages enterprise, not resentment; that enlarges the sphere of personal and civic freedom, not big government; that liberates Americans' energies, rather than pandering to their weaknesses; that acts to fix Wall Street's problems, not to demonize American business.

That violence has been on the agenda of elements within the OWS movement from the get-go is really no longer debatable.  Ironically, the right peaceably to assemble is being compromised by those who want to turn thoughtful assembly into aimless mockery and occasional violence not just because of Wall Street, but also in support of every demand on every radical wish list from abolishment of all debt to the end of capitalism, corporations and government itself. Throw in a cheering section here and there for Chavez, Castro, and a sprinkling of crude anti-Semitism, and you have a movement that isn't a movement at all, but rather a grand gripe conclave where those with real concerns and legitimate grievances are elbowed aside by those with agendas that serve no constructive purpose.

The time has come for law-abiding people of the left and the right to prevent peaceful assembly from being hijacked.  Police, as happened in New York, cannot standby and look the other way.  Finally, on November 15^th, the Bloomberg administration stirred itself and closed Zuccotti Park (itself not a public park) because of the threat of violence and serious concern over public health.

We frequently write about American Exceptionalism by which we mean the unique opportunity our citizens have to legitimately pursue their dreams free from interference by government.  This kind of opportunity cannot exist without the rule of law, which in the case of America is grounded in our Constitution, the centerpiece of which is the Bill of Rights.  If we Americans want to maintain and protect our Bill of Rights  (from which our right to peacefully assemble derives), all citizens must respect and vigorously support law enforcement that protects both the rights of the assembled as well as the rights of the communities in which these assemblages take place.

By Hal Gershowitz and Stephen Porter

Reducing Judge Silberman’s Interpretation of the Term “Regulate” to Absurdity

Reducing Judge Silberman’s Interpretation of the Term “Regulate” to Absurdity

via Patterico's Pontifications by Aaron Worthing on 11/18/11

[Guest post by Aaron Worthing.  Follow me by Twitter @AaronWorthing.]

As I said on John Smart's show the other day, I have not been paying as much attention to the different opinions coming down in the various Obamacare cases ever since we had a split in the circuits.  That is because at that point, I came to believe that Supreme Court review was all but guaranteed, and subsequent events have vindicated that belief.

But in the D.C. Circuit version of the case, one part did stick in my craw a bit, and I thought I would take a moment to address it.  One of the most basic arguments against the mandate goes something like this.  The Commerce Clause says that

[t]he Congress shall have Power… [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

That is found in Article I, Section 8, Paragraph 3.  What opponents of  Obamacare's mandate have said (including myself) is that this grants only the power to regulate commerce that already exists and not to create it.  But, Judge Silberman writes for the majority in the D.C. Circuit Obamacare case that this is an incorrect reading of the language:

We look first to the text of the Constitution.  Article I, § 8, cl. 3, states: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  (emphasis added).  At the time the Constitution was fashioned, to "regulate" meant, as it does now, "[t]o adjust by rule or method," as well as "[t]o direct."  To "direct," in turn, included "[t]o prescribe certain measure[s]; to mark out a certain course," and "[t]o order; to command."  In other words, to "regulate" can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market.  Nor was the term "commerce" limited to only existing commerce.  There is therefore no textual support for appellants' argument.

First, I think that is a facile reading of those definitions.  Ordinarily to direct a thing is to control it but not to create.  For instance, when a police officer is told by his supervisor to "direct" traffic, we don't take that as a power to create traffic, only to channel the flow that is already there.

The other reason why this reading is shallow is that it fails to recognize how that interpretation applies to the other words of that provision of the Constitution.  And to a certain extent this is a product of how modern Commerce Clause doctrine has become divorced from the text.  Every lawyer will tell you that the phrase "commerce… among the several states" means that the Congress can only regulate interstate commerce—that is, commerce between states.  Commerce wholly within a state, intrastate commerce, cannot be touched.  The same lawyers will also tell you that the Supreme Court, however, has completely ignored this clear textual command since the 1930's.  I think the best explanation is that the Court was bullied into making bad precedents by Franklin Roosevelt's court-packing scheme.  The official explanation in the case law is that any commercial activity that affects interstate commerce can be reached under the Necessary and Proper Clause.  But that logic doesn't hold up to scrutiny, because the upshot of it is to erase a distinction written into the Constitution itself between intrastate commerce and interstate commerce.  What was the point of inserting that phrase "among the several states" if that distinction was going to be swept away by the Necessary and Proper Clause?

(Indeed, it is a principle of statutory interpretation that one should "[a]void interpreting a provision in a way that would render other provisions of the Act superfluous or unnecessary."*  That will be important again in a minute.)

Another less feeble explanation for excising the interstate requirement from the interstate commerce clause is to argue that by advances in technology the distinction was erased.  Now there is some truth to that.  When you walk into a Target store, only most a small percentage of the items on the shelves are made within the same state you are living in.  Indeed now and then it is pointed out that many items stamped with the "Made in the U.S.A." logo in fact are "made" to a significant extent in other countries with debates about how much a thing should have to actually have been made in America to earn that logo.  The reality is that our trade is far more interstate and indeed international than it ever has been before.  But that does not justify throwing out the distinction altogether.

Still, because of modern Supreme Court precedent, it is easy to forget that in the minds of the founders there is such a thing as intrastate commerce that cannot be touched by the Federal Government.  And if the word "regulate" can be read to include creation in relation to the "commerce" element of the interstate commerce clause, then why can't it also be read to allow the Federal Government to create the "interstate" aspect as well?  That is, if the word regulate means that the government can force you to buy health insurance (or broccoli), why can't it say to a person engaged in intrastate commerce that they must take their products across state lines?  That is the direct implication of Silberman's reading of the term "regulate."  And this interpretation is particularly galling if you buy the "technological" justification for the expansion of federal commerce power.  If you believe that in 1789 transportation was so difficult that most commerce was more intrastate than it is now, then Judge Silberman's reading would have allowed the federal government to force a person to take their goods across state lines at a time when the trip was much more difficult than it is today.

And to reduce his interpretation of the term "regulate" to even greater absurdity, certainly we would agree that if the purchase of Health Insurance is commerce, surely building a car and selling it is also commerce, right?  The precedents from the modern Supreme Court are especially clear on this point.  So by Judge Silberman's interpretation of the term "regulate" the Commerce clause grants Congress the power to take a person who is not working, or working in another industry, and force that person to work in the manufacture of automobiles.  Now anyone casually familiar with the Constitution would reasonably pipe up and say, "but wouldn't that be involuntary servitude in violation of the Thirteenth Amendment?"  And I would say it would be, but the Thirteenth Amendment was only ratified in 1865.  So is it Silberman's position that in 1864 a random free citizen could be conscripted into a job he didn't want under the Commerce Clause?

And all of this becomes even more absurd when we also remember that the term "regulate" applies equally to interstate and international commerce.  Again, this is where our reading of the text can be warped by modern precedent, for the Court has never read the international commerce clause half as broadly as the interstate commerce clause.  For instance, in Wickard v. Filburn a wheat farmer was told that he could be prevented from growing wheat for his own personal consumption on the theory that if he did not grow his own wheat he would be forced to buy it from others, and thus his growing of wheat affected interstate commerce.  But no court has held that we could therefore prevent a man living in the Ukraine from growing wheat for his own use because it will affect international commerce with America.  And does anyone believe that our government can command a man in China to buy a certain product?  (Indeed, if Obamacare is upheld, I have a delightfully simple way to solve the problem with our chronic trade deficit: just pass a law requiring everyone in the world to buy more American products.)  But so I suppose Silberman would be forced to claim that to "regulate" meant one thing internationally, and another domestically./

So in short, Judge Silberman's interpretation of the term "regulate" would lead to the absurd results of forcing a person to travel across state lines against their will, to work at a job not of their own choosing (prior to ratification of the Thirteenth Amendment) and would allow us to command citizens in other countries to buy American.  Although that last possibility definitely has its appeal, it is nonetheless an absurd definition of the term "regulate" and therefore, it is wrong.  And the travesty of it all is that our discussion of the Commerce Clause has become so divorced from the original text and what it plainly meant, that it is hard for modern minds to even recognize the absurdity of Silberman's interpretation.

And there is one more problem.  It is presumed in the construction of language in the Constitution (or any statute) that the same word has the same meaning in all contexts.  So let me call your attention to Article I, Section 8, Paragraph 14:

The Congress shall have Power… [t]o make Rules for the Government and Regulation of the land and naval Forces;

Now at first glance it seems reasonable to interpret the term "regulation" as allowing for creation.  Certainly Congress has the right to create a military, right?  But here's the thing; in the two paragraphs before it, the Constitution makes specific reference to that power:

The Congress shall have Power… [t]o raise and support Armies; … [t]o provide and maintain a Navy;

So if the word "regulate" meant to "create" then there would be no need to specify the right to raise an army or provide a navy.  It would be implicit in the term "regulation;" indicating that the founders did not believe that the word "regulate" included creation.  And as I said before, the courts avoid interpreting a provision of the constitution or a statute in a way that renders other parts superfluous or unnecessary.Besides, if regulate meant to create, then what exactly is a well-regulated militia?

No, Judge Silberman, far from there being "no textual support" for the claim that to regulate is not the same as creating, on balance, the opponents of Obamacare have the better textual argument—but particularly if we remember what the Constitution actually says, and not merely what the Supreme Court has said about it.

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* That phrase is from William Esckridge, Jr. & Phillip Frickey, The Supreme Court, 1993 Term—Forward: Law as Equilibrium, 108 Harv. L. Review. 26, 97-108 (1994).  I wrote out the full citation because that part of the article is a classic, listing many of the canons of textual interpretation followed by the Supreme Court along with cases applying them.  Bluntly I recommend that every working lawyer keep a copy of it on his desk.

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Also, you might have noticed I have deployed a similar argument on conscription in the past.  But in that case we were talking about the reach of the necessary and proper clause, so it is similar, but not completely repetitive.

[Posted and authored by Aaron Worthing.]

Newt Checks and Balances Liberal Judges

Newt Checks and Balances Liberal Judges

via The American Spectator and The Spectacle Blog by Peter Ferrara on 11/16/11

The genius of America's Founding Fathers is reflected in the innovative system of checks and balances they adopted for our government, to prevent abuse of power by any authority. Congressional legislation is subject to veto by the President, and to review for constitutionality by the courts. The President and his Executive branch are subject to the laws passed by Congress, enforced by the courts, and presidential appointments are subject to confirmation by the Senate. So are treaties. The President appoints the judges, subject to Senate confirmation.
And if those judges refuse to apply the law objectively as written, and instead engage in judicial activism making up their own law based on their own liberal/left values, then they are applauded by the liberal/left media and academia. The rest of us can go pound sand.
At least that is the view of the New York Times, the Washington Post, the bar association, and the law schools. They are the ultimate authority and rulers in America under this doctrine of judicial supremacy. Any other view is dangerous to our most fundamental liberties, they tell us (at least while the judges reflect their liberal/left views).
But not according to Newt Gingrich, the Founding Fathers, and American history. To these authorities, it is judicial supremacy that is dangerous to our most fundamental liberties.
Gingrich explained the historical checks and balances on the judiciary in our American system of government, in a brilliant speech to the Value Voters Summit last month. He accompanied that with a detailed campaign position paper released at the same time, entitled "Bringing the Courts Back Under the Constitution." These insights are reflected as well in Plank 9 of his new 21st Century Contract with America.
The currently reigning establishment counterauthorities cited above reject any such checks on their power. But in Gingrich they have a foe who has proven he knows how to beat the establishment, and has the guts to take them on.
Checkmate
Gingrich recalls the actual checks and balances on the judiciary established by our Founding Fathers, who recognized the dangers of judicial supremacy. Jefferson wrote in challenging such judicial supremacy in 1820, "You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." Jefferson further wrote later that year, "The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet."
The view of Jefferson, the Founding Fathers, and Gingrich is that interpretation of the Constitution is not the role of the judicial branch alone. Because we have three, equal, co-branches of our government, reflecting the separation of powers that enables checks and balances, Congress representing the legislative branch and the President representing the executive branch, have equal authority to interpret the Constitution as well.
Under our Constitution, Congress and the President consequently serve as checks and balances on a runaway judiciary of activist judges reading their own elitist liberal/left values into the Constitution, contrary to the will of the people. Because Congress and the President are subject to regular elections, they are subject to the ultimate check by the people holding them responsible for their conduct in office, including their interpretations of the Constitution.
For an example as to how this works, Gingrich points to Abraham Lincoln and his response to the Dred Scott decision upholding slavery as involving established property rights. Lincoln disagreed with the Supreme Court's interpretation of the Constitution, as informed by the Declaration of Independence and other founding documents, concluding that there was no basis in the Constitution or anywhere in American law for holding that some people could have property rights in the person of other people. Lincoln agreed that the Dred Scott decision was binding on the parties to that case, but not on the whole nation, or on his Administration, saying in his 1861 Inaugural Address:

[T]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Consequently, Lincoln's Administration refused to enforce the Supreme Court's doctrine that slaves were the valid property of others, or to recognize the Dred Scott decision's binding authority on his Administration. He acted contrary to it in granting passports to African Americans who applied for them, recognizing them as people not property. He signed legislation denying the Supreme Court's property rights over slaves whose "owners" took them to Federal territories, which was directly contrary to the ruling in Dred Scott. In 1863, Lincoln issued his Emancipation Proclamation freeing all slaves within the United States, again directly contrary to the Supreme Court's "property rights" announced in Dred Scott. If that case was binding on the Lincoln Administration, then the federal government would have had to pay compensation for the Emancipation Proclamation to all slaveowners under the Fifth Amendment's Takings Clause.
In his Values Voter Summit speech last month, Gingrich similarly explained how Franklin Roosevelt exercised his check and balance on the Supreme Court, saying:

In 1942 a group of German saboteurs were landed in Florida and Long Island. They were all picked up within two weeks. Roosevelt brought in his attorney general and said: They will be tried in a military court, they will be executed, it should happen within three weeks, and tell the Supreme Court if they issue a writ of habeas corpus, I will not honor it, and therefore they should not issue it. I am the commander in chief in wartime. They aren't.

Just as Lincoln, Roosevelt refused to be bound by Supreme Court rulings he viewed as contrary to the Constitution. In such a case, the Attorney General would issue an opinion as to the Administration's view of the Constitution on a particular matter, and it would then be up to the people ultimately to decide in holding the President and his party accountable at election time. This is how a system for a free, self-governing people works.
Gingrich cites the precedent of President Andrew Jackson as well in the controversy over whether the Bank of the United States was constitutional. Gingrich quotes Jackson's response to Supreme Court precedents that the Bank was constitutional:

"The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."

This was the same position that Lincoln took in regard to Dred Scott. Gingrich further explained the issue in his speech at the Value Voters Summit:

Jackson in -- in tackling the Bank of the United States, which he said was a(n) overly centralized form of power -- think of it as the earlier Bernanke -- was told, well, the Supreme Court has said that it's constitutional. He said: Fine, that's their opinion. And he said: I have a different opinion. I am the president. They're a court. They get their opinion in court. I get my opinion in the White House.

Still More Checks and Balances
Gingrich and his campaign present a thorough program for countering runaway liberal judicial activism. President John Adams appointed Federalist Party federal judges who enforced the Alien and Sedition Acts to imprison Jeffersonian activists contrary to the Constitution. When the people had their say in the election of 1800 and voted out Adams in favor of Jefferson, Adams responded in the following lame duck session by doubling the number of federal judges. Those abusive appointments were labeled "Midnight Judges."
When Jefferson came into office, he and his party simply abolished the judicial seats to which the Midnight Judges had been appointed, thereby removing at the time half of all federal judges. They didn't impeach the judges, they just abolished their offices. The Supreme Court in Stuart v. Laird recognized that this was a valid exercise of Congress's power explicitly provided in the Constitution to provide for the appointment of inferior (to the Supreme Court) federal judges.
Gingrich argues that the same can be done today in regard to federal judges who exhibit a pattern of judicial activism, making up the law in accordance with their liberal values rather than objectively enforcing the law as written. He raised that possibility in response to a recent ruling of a San Antonio federal judge holding that if a student at a graduation ceremony even used the words "God" or "benediction" or "invocation," he would lock up school officials. Ninth Circuit beware, Gingrich recognizes that under established law, you can just be abolished outright.
Gingrich notes as well that Article III, section 2, clause 2 provides that "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." That means that yes, indeed, Congress has the power to limit the jurisdiction of the federal courts, and this power has already been upheld by judicial precedents. That means duly adopted legislation can provide that the federal courts would have no jurisdiction, for example, to hear cases challenging the Defense of Marriage Act (DOMA). Legislation could define marriage in America as between a man and a woman, and provide that is outside the jurisdiction of the federal courts as well.
Of course, the people would be free to hold Congress and the President accountable for such actions at the next election. But that only means that the ultimate check and balance is in the hands of the people, rather than unelected judges, which, again, is the right system for a free, self-governing people.
Gingrich argues further that Congress has the right and power to impeach federal judges for wrong decisions, or to subpoena them before Congress to explain their decisions to the American people if they can, or to discipline the judiciary through its control over the spending power. If Congress can defund a war with troops in the field, surely it could defund the Ninth Circuit, or other judges who think they can march to the beat of their own drummers, rather than objectively apply the Rule of Law. Those who favor rule by lawyers rather than rule by the people object to these powers. They can take their case to the people as well.
Gingrich's Value Voters Summit speech, his campaign position paper, and his Contract with America provide a thorough, powerful complex of checks and balances to abuse of judicial power by activist judges, grounded in American history and established American law. It is the most powerful challenge to the liberal establishment in this campaign. Pro-family and Christian voters, take notice: there is a special opportunity here to restore the power of the people intended for us by our country's founders.