An Obama judicial appointment has troubling views on the Constitution:
Liu opponents point to a number of his writings, including a book he co-authored in 2009 called “Keeping Faith with the Constitution,” in which the authors opine about their concept of judicial interpretation.
“Applications of constitutional text and principles must be open to adaptation and change … as the conditions and norms of our society become ever more distant from those of the Founding generation.”
That theme — that the Constitution’s text and principles must be adapted to changes in the world — repeats throughout the book and raises eyebrows among conservatives.
It is imperative to combat such dangerous views wherever they arise. Yes, some principles change over time. Others, including many captured by both the Declaration of Independence and the Constitution, are timeless. But for those principles that might change, the Constitution provides a process for dealing with that: amendments.
It’s an entirely different beast to say that the application of the constitution changes. The principles of the Constitution should be simply applied as they are. Believing differently raises an obvious question, which in the end should reveal the fault of this view. Who decides how the application changes? The answer, as we have seen to our detriment over the last 80 years or so, is that the court decides.
Allowing the Supreme Court to bring the Constitution into alignment with changing principles removes the people from the democratic process. This is why the Constitution was given an amendment process – so that it could maintain its principled timeliness, but still be of, by and for the people.
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Writing in the Wall Street Journal today, Congressmen Mike Pence and Jeb Hensarling lay out how we can wrangle government and get it under control:
Fiscal storm clouds are upon us. In five years, federal spending has skyrocketed to 24.7% from 19.9% of our economy. That’s the highest level since World War II. Borrowing has ballooned the national debt to $11.9 trillion from $7.3 trillion, a five-year increase equal to the accumulation of debt between President George Washington and President Bill Clinton.
Unfortunately, the long-term fiscal picture is worse. As the Baby Boom generation retires and the cost of health care continues to escalate, entitlement programs will cause federal spending to rise to 40% of our economy, double its post-World War II average. This is assuming that spending does not increase even further, an assumption that the trillion-dollar “stimulus” bill and the 84% increase in nondefense discretionary spending President Obama signed into law argues against.
Their proposal:
Winston Churchill once said that “Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.” We’ve exhausted the possibilities. Now it’s time to do the right thing.
That is why we are proposing a Spending Limit Amendment to the Constitution. This amendment would limit spending to one-fifth of the economy (our historical spending average since World War II). The limit could only be waived by a declaration of war or by a two-thirds congressional vote.
As with other constitutional amendments, Congress would be given the authority to enforce and implement it. But for the first time, the federal government would have a limit on its size and scope. The Spending Limit Amendment does not promise a particular spending plan about what programs to restrain and by how much. Rather, it puts a legal constraint on lawmakers present and future.
As ideas go this is a pretty good one. Constitutional amendments are very difficult to pass, though. Can the Tea Party movement rally around this idea and make November a referendum on it? It’s possible, but I’m not sure how that could be enough.
Republicans would have to run the table just to get a Senate majority. It’s not possible for them to win the 66 votes needs to pass a Constitutional amendment. And no matter how scared they are, I just don’t see any Democrats voting for this. It would mean the end of their tax and spend racket, and would force them to deal with the growing fiscal crises of Medicare and Social Security.
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Thirteen state AG’s promise legal action if Nebraska’s sweetheart deal is not removed:
“We believe this provision is constitutionally flawed,” South Carolina Attorney General Henry McMaster and the 12 other attorneys general wrote in the letter to be sent Wednesday night to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid.
“As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking that provision,” they wrote.
At issue is the Constitutional requirement that “all Duties, Imposts and Excises shall be uniform throughout the United States.”
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Rep. Poe is looking for co-sponsors for his resolution, which would amend the rules to prevent the House from considering “a regulation of individual activity disguised as a tax.” In other words, no pretending that an individual mandate is authorized under the powers to tax.
So far he has found only a single cosponsor in fellow Texan Rep. Johnson.
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Every piece of legislative problem solving ought to start by answering a simple question: under what Constitutional authority do we act? Given that the Constitution is a document of enumerated powers, a specific empowerment should be found to support the action. Not only does Nancy Pelosi disagree, she and her office thinks it’s ridiculous to even ask:
The exchange with Speaker Pelosi on Thursday occurred as follows:
CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
Pelosi: “Are you serious? Are you serious?”
CNSNews.com: “Yes, yes I am.”
Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a ”serious question.”
“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”
Exit question: Ideally, ought this attitude constitute an impeachable breach of her oath to “bear true faith and allegiance to the [Constitution]?”
Hat-tip: Yid with Lid
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A year after the Heller decision found an individual right to bear arms, the Supreme Court is again considering the question of gun rights. The court granted cert. in McDonald v. City of Chicago, and will hear thequestion of whether or not the 2nd amendment applies to the states, and not just the federal government, through the process of incorporation via the 14th amendment.
Alan Gura, who successfully argued the Heller case, will be the lead attorney on the side of McDonald, a resident of a high-crime Chicago neighborhood whose application for a gun permit was turned down by the city with arguably the toughest restrictions in the country.
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The biggest bullies in America, collective referred to as Congress, are tackling the issue of cyber bullying. Their solution? An all out assault on the first amendment via the Megan Meier Cyberbullying Prevention Act:
‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.
‘(b) As used in this section–
‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and
‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.
Nothing could possibly go wrong with such a broad piece of legislation. Some of the things I seek to do with this blog could accurately be described as: intimidating politicians into actually obeying their oath to defend the Constitution, harassing corrupt officials into complying with the law, and causing substantial emotional distress to those politicos who think that mortaging our children’s future is a viable means to achieve reelection.
In other words, you can pry the keyboard from my cold, dead fingers.
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A curious item in Politico today suggests that there might be a constitutional challenge to the recently passed Defund ACORN Act:
Article 1, Sections 9 and 10, of the Constitution explicitly prohibit the passage of “bills of attainder”: legislation targeted to benefit or penalize an individual or group, most often by excluding it from government service.
Does the House’s Defund ACORN Act, which passed 345-75 last week, constitute a bill of attainder? The case law on the issue is inconclusive, but it’s provided a glimmer for ACORN’s diminishing cadre of defenders.
A bill of attainder is basically a congressional finding of guilt. Congress could not, for instance, determine that Joe Bob committed treason and then send him to hang. That’s properly considered a judicial function.
There is no application to the present situation. Congress has neither concluded guilt nor imposed punishment on ACORN. As is so often said, Congress has “the power of the purse,” which means they have the authority to fund constitutionally permitted programs and policies as they see fit. They also must have the authority to defund them. Moreover, they can do so at their prerogative without offering any sort of explanation beyond what their constituents demand.
Some seem confused by the fact that Congress acted on the appearance of criminality by ACORN. Therefore, they conclude, ACORN was “punished” by having its funding revoked without a trial. This is mistaken. While it was the appearance of criminality that politically forced the hand of Congress, the actual commission of a crime was not relevant to the legality of the legislation. They no more had to conclude ACORN’s guilt of anything than they would have to first show the commission of a crime before halting funding for the F-22, or any other government program. It was more than enough that Congress had finally lost faith in the ability of ACORN to carry out its charge in recieving federal dollars.
As it works with government agencies, ACORN is expected to execute certain functions with a degree of competency. Congress has a responsibility for oversight to ensure that they fulfill these obligations. Their determinations are not the equivalent of criminal findings as dealt with by bills of attainder. This is clearly a last ditch, desperate attempt by ACORN supporters to keep the Democrats from losing an important political arm of their party.
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That’s the question being asked by many discussing Sam Tanenhaus’ new book, The Death of Conservatism. As he’s now making the rounds, it’s difficult to avoid the discussion. His ultimate prescription of a content-free conservatism is so obviously self-serving for the liberal agenda that I’m not going to waste time addressing it.
A more interesting point I’ve seen him make is the contention that today’s conservatism, such that he admits it exists, is lacking in heavyweight intellectuals like William F. Buckley, Jr. I think he’s looking in the wrong places.
No, there is no one like Buckley in the conservative movement today. Nor is there a Reagan. This is less reflective of the state of conservative intellectualism than it is the fact that the two giants were irreplaceably unique.
Tanenhaus, like many in D.C. circles, looks only in two places for intellectual contributions: Washington, D.C. and the Ivory Tower. In his view, events like last week’s D.C. Tea Party are the result of unsophisticated, if not outright moronic, masses lashing out because they lack enlightened leadership. I think he’s got it all wrong.
Where he sees no intellectual leaders, I see millions. Thanks to the advances of technology, leadership is no longer confined to positions of great power or influence. With instant communication, political movements are finally able to arise via spontaneous order, the process by which common languages developed, or markets function. Direction need not come from on high when outcomes are emergent.
As an example of the kind of intellectualism I see in conservatism, let me recount a short story from my trip to the D.C. Tea Party. As is my habit, I left the event a bit early to avoid the rush out of town, though there were still plenty other marchers on the Metro with me. A few of them struck up a conversation with a local woman who did not share the views of the marchers, though like them she was respectful and pleasant, taking turns listening and offering her views.
One of the marchers, in the course of a conversation the details of which I do not quite recall, began referencing the Constitution. Specifically, he drew on the manner in which the Commerce Clause has been abused through a misunderstanding of the targets of the clause, as well as the meaning of the word “regulate” at the time.
Is not such enlightened discourse exactly the model for democratic debate that stuffy elitist types moan is so lacking? Is it accurate or honest to declare a movement with so many such people interested in American constitutional history to be lacking in intellectualism, merely because there is no Ivy League spokesman at the forefront?
Mr. Tanenhaus has asked an important question about a historically significant and influential movement within the American political sphere. It is unfortunate that his cultural blinders have prevented him from seeing the answer.
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It’s September 17th, which means it’s Constitution Day! I don’t get much worked up about such things, because to me every day is Constitution Day. Still, in honor of the occasion I’ll link to this post from a couple years ago, where I responded to a suggestion to scrap the Constitution:
In an op-ed for the Los Angeles Times, Larry Sabato suggests that we scrap the constitution, convene a constitutional convention and come up with a new governing document. Such an idea shouldn’t be dismissed out of hand. There may come a time when this sort of action is necessary. At this time, however, there is no such need. Today’s biggest problems stem from where the Constitution is being ignored, not where it’s being followed…
Read the rest here.
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I am a libertarian-conservative blogger living in the DC area. I have a Master's degree in Political Science, but please don't hold that against me.
