Separation of Powers

As we move on to immigration, the new theory of the separation of powers that is being implemented by Pres. Obama is: 

1.  Give the Congress the opportunity to pass the laws the president wants passed,

2.  If they fail at their job, then the President will do it for them.

I am particularly impressed that "not doing what the President wants"  is referred to - sometimes implicitly but sometimes explicitly - as a "failure".  Apparently the press does not notice this oddity.

SCOTUS has said (by 9-0) that the President is not the agency that decides whether the Senate is in recess or not.  However, this has apparently not slowed him down.  I wonder what would.
 

Historical note: The Gettysburg Address

Some things bear repeating:

At the Battle of Gettysburg on July 1-3, 1863 a hundred and seventy thousand men launched themselves at each other and suffered almost 50,000 casualties. Lee was repelled and returned to Virginia. At the site on this day, later that year, the noted orator, Edward Everett, held forth for over two hours on this momentous occasion. 

Abraham Lincoln was there too, and before the photographers had finished setting up for him, he had completed the following remarks. In C-span fashion we note that his remarks lasted for about two minutes.

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But in a larger sense, we cannot dedicate - we cannot consecrate - we cannot hallow - this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us - that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion - that we here highly resolve that these dead shall not have died in vain - that this nation, under God, shall have a new birth of freedom - and that government of the people, by the people, for the people, shall not perish from the earth.
Abraham Lincoln - November 19, 1863

Ratification - The People Debate The Constitution

This book by Pauline Maier is delightful if you among those of us who can't get enough of exactly how they pulled off the creation of the American nation.  You can follow the year long debate about the Constitution as it moves from state to state and marvel at the flukes that may have been critical.  For example,  in Virginia the formidable orator Patrick Henry was opposed because he thought the new government would free the slaves.  The issue was crucial both with respect to timing and Virginia's importance  and it was very close.  When the debate came to New York almost all of the major players in the state were opposed.  The convention was two to one against ratification.  If NY had come earlier it might have all been different or at least a lot harder.  But there were already 10 states in the union by then, so the question was no longer whether to have a union but whether to join it.

I very much enjoyed the book.

It is 588 pages (of which 100 are notes) by Simon and Schuster, 2010.

Nixon Tapes Cartoon

In 1973-4 President Nixon was claiming that he could withhold the White House tapes from Congress because of Executive Privilege.  That theory is that the President can withhold some things or else the Executive would not be an independent Branch of Government. The Supreme Court ruled (I think unanimously) that Nixon's concept of executive privilege was larger than was justified and ordered him to give over the tapes.

Bob Taylor of the Dallas Times Herald drew a cartoon which was among the best I have ever seen.
It shows Nixon sitting atop an roughly constructed (i.e. extra constitutional) structure labeled executive privilege branch which is itself sitting on the Executive Branch.

I wish I had a cleaner copy.

Constitution

One of the framers' fears.

The Fiscal Cliff 2

The Senate has a fiscal cliff proposal.  It calls for 15 billion in spending cuts and 620 billion in tax hikes.
(Recall that the Dems want the problem solved by tax increases and Reps want it done by spending cuts.)

5 things about this deal.

1.  Oviously it is an overwhelming "win" for the Dems and their preferences by roughly 40 to 1.

2.  If the House does not go along they will be the ones labeled by the media as intransigient.

3.  This is a ten year proposal which will produce "savings" of $63.5 billion per year.  The ANNUAL deficit is well over $1,100 billion.  That means that this proposal is 5.7 % of the solution of that short term problem and does not deal at all with the long term issue of entitlement reform.

4.  Nobel prize winner Paul Krugman a supporter of Obama, taxes, borrowing, and spending tells us his view in conceder in chief.  As the title suggests that he views it as a loss by Obama.  In fact he says at one point that "it’s a bad and upsetting deal".  However, he also notes that there were "no spending cuts at all."

He also told us that the really bad thing about this deal is that Obama did so badly that:  "Republicans will go right from this negotiation into the debt ceiling in the firm belief that Obama can be rolled."

What kind of proposal would it take for Krugman to consider it a win?

5.  One wonders what happened to the Constitutional requirement that revenue bills begin in the House?

(added at 7:15 PM - Perhaps the Senate bill is not original but rather a revision of a previous House bill.)

The Left, the Right, and the Constitution

This article by Yuval Levin is very interesting.

torture and murder

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A very interesting piece in the N Y Times details Obama's "targeted killing strategy" in the conflict with terrorism.

Do you remember the outrage that was exhibited by liberals over the fact that Bush had water poured in the faces of known terrorists to obtain information?  Now comes their guy, Obama, who solved the problem of what to do with prisoners by just not having any!  No prisoners!  A sort of "kill'em all and let God sort it out" approach. The silence from the liberals is deafening.
The ACLU gets credit for being consistent in condemning both.

Some excerpts:

"A few sharp-eyed observers inside and outside the government understood what the public did not. Without showing his hand, Mr. Obama had preserved three major policies — rendition, military commissions and indefinite detention — that have been targets of human rights groups since the 2001 terrorist attacks."
....

"Yet the administration’s very success at killing terrorism suspects has been shadowed by a suspicion: that Mr. Obama has avoided the complications of detention by deciding, in effect, to take no prisoners alive. While scores of suspects have been killed under Mr. Obama, only one has been taken into American custody, and the president has balked at adding new prisoners to Guantánamo." 

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"That record, and Mr. Awlaki’s calls for more attacks, presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial?
The Justice Department’s Office of Legal Counsel prepared a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch."

I invite you to read the last one again.  I think that it is clear that the requirements of due process include: "Right to a fair and public trial conducted in a competent manner.  Right to be present at the trial.  Right to an impartial jury.  Right to be heard in one's own defense."  All of that is taken care of by a conference inside the executive branch!!  Relax, what could go wrong?  
This is where you end up when you adopt the principle that foreign terrorism is just another crime.

PS  If you refer to "water boarding" as torture, then perhaps you should also refer to "targeted killing" as murder.
PPS  I support both policies in the way in which I think that they were conducted.
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constitutional law professor

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I find Obama’s constitutional remarks depressing.

In the 2010 SOTU he claimed that the Citizen’s United decision by the Supreme Court would open the floodgates of contributions to our political campaigns by foreign corporations. Alito shook his head because those who wrote the decision in that case specifically noted that they were not touching the law about foreign corporations – Politifact called Obama’s remarks “mostly false.”

Then on April 2 his remarks about how it would be “unprecedented” if “unelected judges” (U S Supreme Court) were to overturn a federal law and take us back to Lochner in the thirties and I’m going what - what - what ?? The errors and flavor were stunning.
Well just review a few facts –

a) unprecedented – No, they’ve done it hundreds of times from very recently to all the way back to 1803 in Marbury v Madison which established that one of their main functions was to keep the elected branches inside the constitution. This is not subtle constitutional law theory it shows up in in US History 101.

b) unelected judges – It is true that the Supreme Court is unelected and I hope they stay unelected. In this context that expression is an epithet that is used to make an independent judiciary sound like a bad idea. If it sounded familiar to you it may be because it was used in the fifties and sixties by Strom Thurmond, Lester Maddox, et al who wanted to impeach those “unelected judges” because of Brown v Board of Education.

c) The problem with the Lochner reference was that that decision was in 1905, not the thirties, and the full name is Lochner v New York - it was a state law - not a federal one - that was at issue.

Now it seems like that there are two possibilities. Either he did or he did not know at the time that he was wrong about those things,
If he did not know, then they should quit referring to him as a constitutional law professor.
If he did know, then perhaps that is even worse.

Added at 5:45 PM 4/10/2012
A defense of Obama's comments can be found in The New Republic article:
Yes, Obama's Comments on the Court Made Sense
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Freedom of Assembly

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So what does that mean? I think it means the right to have a parade or a demonstration or a large congregation like the "Million Man March" a few years ago. You get to interact, speak your piece, send'em a message, etc. That means for a short period you get to disrupt other people going about their business.

It does not mean that you have the right to use occupation to force other people to bring their lives to a halt until you get what you want. It does not mean that you get to coerce people to do what you want them to.

Some people are confusing this with civil disobedience as in the civil rights movement. But a fundamental part of civil disobedience is accepting the consequences of the law. If you go to jail, then you get the appropriate amount of added publicity. The current crop of occupiers seems to be outraged at the idea that the law should be applied to them.

I would encourage those who support the occupiers as they are camping out and preventing other people from carrying out of their business to give it some thought. For example, the Supreme Court long ago determined that freedom of assembly does not allow a right to life group to close an abortion clinic by occupying it.
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Supermajorities and debt

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For some things we require supermajorities to pass. Congressional proposal of Constitutional Amendments, State approval of amendments (three fourths), treaties, overriding presidential vetoes, removal of members of the government (impeachment by the House is by majority vote but conviction by the Senate requires two-thirds.)

The areas where we require these larger votes for approval seem to meet one or more the following characteristics.
1. The subject is of overriding importance,
2. The consequences of the action extend well beyond the present situation, or
3. The action involves a power that is particularly subject to being abused.

For example taxes do not require more than a majority vote because they only apply until some later legislature changes them.

So my question is: Doesn’t the borrowing of money meet all three of those criteria?

1. Our current crises makes it clear that borrowing meets the first criteria.
2. It will be on our grandchildren (who have no vote in the matter) which means that it meets the second criterion.
3. The widespread use of the habit of promising future benefits to government employees or beneficiaries of entitlement programs makes it clear that it is very subject abuse.
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The living Constitution

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Rachel Maddow was on Bill Maher's show last February 28th where she argued that we should use an interpretation of the second amendment that would allow the outlawing of guns.

Ms. Maddow believes in the "living constitution" and she thinks that the living constitution has outlived the second amendment.

Nowadays when people say that they believe in a "living Constitution" what they mean is one that lives up to their expectations of what it ought to say and has outlived those parts of it that they don't like.

filibuster 2

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I have changed my mind on the filibuster.

I can see a value to having a rule which allows a very distressed minority to slow something down and make sure that it is considered thoroughly. But there is a limit after which you are "obstructing democracy."

So I would like to see the Senate filibuster rule changed to something like the following:
Recall that cloture is a vote to limit debate on a bill to a specified amount of time. The filibuster rule requires 60 votes to pass a cloture motion. (Apparently they now have a twist where you don't even have to take the cloture vote, you just have to have 60 votes to even bring something to the floor.)

proposal:
For a particular bill: In the first instance cloture requires 60 votes, the second cloture vote requires 57, the third 54 and the fourth 51. Some fixed period of time, say 1 week, must intervene between each pair of votes.

The first level of reasoning for this is the March 14 post repeated below.

Our government was constructed to handle what was a cross between a confederation and a nation. It was designed to move slowly in a world where very little was expected from government. Therefore it was given very little money.

We long ago gave up the confederation part of that mixture and became, more or less, a nation. Governments, here and around the world, are now expected to do much more for the people, and do it quickly, than they once were. Our American governments are now spending 40+ percent of GDP.

Is it possible we should review how we are doing things?
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Rights and Powers of states

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"States Rights" has a very bad public relations problem. It is hard to make an argument based on it because it was used to defend secession and then the American Apartheid. Noone that I know wants to defend either one of them. The fact that it has been ill used does not reduce its validity, but it does reduce its viability.

But there is a curious thing about states rights. Their source is the 10th amendment which says:
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.

The thing that strikes me about this is that the word rights does not appear here. So maybe you want to make your arguments along that line based on the "state powers" that are in the 10th amendment.
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sclerotic government

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Our government was constructed to handle what was a cross between a confederation and a nation. It was designed to move slowly in a world where very little was expected from government. Therefore it was given very little money.

We long ago gave up the confederation part of that mixture and became, more or less, a nation. Governments, here and around the world, are now expected to do much more for the people, and do it quickly, than they once were. Our American governments are now spending 40+ percent of GDP.

Is it possible we should review how we are doing things?

second amendment solutions

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I think that the second amendment has been seen by different folks at different times as having different purposes. They include people who like guns as 1) toys (target shooting etc.), 2) hunting instruments, 3) a means of personal and home protection, and 4) that other, more ominous purpose, the means of implementing the “right of revolution”. What that Nevada Senatorial candidate called “second amendment solutions”. That is, some believe that one reason for the existence of the second amendment is so that an armed citizenry can resist an oppressive national government.

Now maybe there is something to that. But I just want to point out that it’s been tried. The only major attempt in our history to implement a second amendment solution occurred in 1861, when approximately one-third of the country rose up against a federal government. They were led by a widely praised general and they reportedly fought very well. Afterwards, they called it “The Lost Cause.”

Now to get a good idea of the prospects of someone succeeding with a modern “second amendment solution”, remember that when that first one started the federal army contained only about 16, 000 men. These days almost half of all of the annual military expenditures in the entire world are spent on the US military and they are widely regarded as being somewhat better than pretty damn good. So, if you think that the second amendment is some sort of pathway for someone to successfully rebel against a federal government controlled by whatever group it is you are most worried about, I think you should take a chill pill. Basically, you would have no chance at all. Unless you are going to go guerilla, which is to say, turn terrorists. If that is the case, then you probably shouldn’t admit it.

We have seen the way to resist tyranny in the modern world. It is the way of Ghandhi and Martin Luther King.

So I think that we should just say that, whatever we think its original purpose may have been, we should now think of the second amendment as being for purposes 1, 2, and 3 and forget about number 4.

So why am I talking about this? Because - #4 - is the phony reason that is used to justify the sale of AK 47s, extra large clips, and all that other military paraphernalia whose only purpose is to kill a whole lot of people before you can be shut down. It is time for all of that to go.
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the court

A few days before it happened a liberal was contemplating the prospect of Congress's repeal of DADT with some sadness because, "Probably repeal won't pass the Supreme Court."

I offer this as an example of how deeply ingrained in the psyche of the left is the idea that the Supreme Court is, as one reporter called it, "the highest lawmaking body in the land."

Northwest Ordinance 2

For the ordinance see Dec 10.

A few months after the Northwest Ordinance, in the Constitutional Convention there was a hard fought compromise about slavery. Later the Civil War was fought, not over maintaining slavery in the 15 states where it existed, but over the right to extend slavery into the territories.


Two months before the Constitutional Convention that whole proposition was given away by the south when they agreed to no slavery in the Northwest territory. That passed the Confederation Congress. The amazing thing is that the votes in that congress were by states and unanimity was required!

Not a single southern state voted against the ordinance.

That is what seems to me to be really profound about the Northwest Ordinance. It was easily passed in July but slavery was a big deal just two months later in Philadelphia.

There is a story in here.
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Justice Breyer

I am generally very impressed with Supreme Court Justice Stephen Breyer he leads me to entertain beliefs in things I am predisposed to doubt. He is a persuasive supporter of the principle of a "living constitution" and by that he does not mean "it can be amended". (added 12/15 - he did NOT look good in this interview)

In an interview with Chris Wallace on FoxNews Sunday on Dec. 12, 2010 he explained why he had voted with the dissenters in the 2008 case “D.C. v. Heller” which dealt with the Washington, D.C. handgun ban which the majority struck down as being in violation of the second amendment.

Breyer's argument was this: When Madison wrote the second amendment he was trying to get "that document" ratified by the states. The states were worried about the power of the federal government. The Congress might nationalize their militias. To show that that could not happen, Madison wrote the amendment to satisfy the states.

Amendment 2
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Breyer apparently believes that James Madison, who was at least a fair to middlin' writer, wrote an amendment to prevent the Congress from nationalizing state militias, and in that amendment he did not mention either Congress or nationalizing militias.

In at least two different places in the constitution there is a provision for doing exactly that which Breyer says the states were afraid of: nationalizing of the militia. The states had already approved that constitution. On June 11, 1963, President Kennedy nationalized the Alabama militia which ordered Gov. George Wallace to step out of the schoolhouse door. Breyer apparently believes that that was a violation of the second amendment.

Now if you, in your childlike understanding, are having difficulty with his reasoning, perhaps it is because you have limited experience with "living documents."

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The Northwest Ordinance

The Northwest Ordinance is a serious contender for being one our founding documents. Its purpose was to determine how the country northwest of the Ohio river (roughly the modern states of Ohio, Indiana, Illinois, Michigan, and Wisconsin) would be administered, developed and brought into the union.

It was adopted by the Confederation Congress on July 13, 1787. With minor modifications it was adopted again in the first congress under the new Constitution and signed by G. Washington on August 7, 1789. Why should anybody care? Well below is a list of some of the things that it did either through the force of law or the power of precedent.
1. It established the principle that new states would be admitted into the union on a completely equal basis with the original states! That is, the new American nation would not treat acquired lands as colonies (as the Europeans did), provinces (Rome), or soviet republics (Russia). Shortly thereafter the Constitutional Convention wrote this principle into the fundamental law. (See the next installment of American exceptionalism.)
2. It provided for an orderly transition from territorial status to statehood through a process which followed the nation across the continent in the next century.
3. It specified certain rights of habeas corpus, freedom of religion, and due process (before the Constitution and Bill of Rights).

But the most important thing is that it prohibited slavery in those territories!

When the civil war came these 5 states had a population that was approximately the same as the white population of all 11 of the seceding southern states.

That is why July 13, 1787 was the day that the South lost the war.

Well, enough about these little games about when the South lost the war.

Tomorrow we will go to something much more profound about this event.

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