Strengthening Constitutional Self-Government

No Left Turns

Published in Congress

Foreign Affairs

Today's History Lesson

Looking for a cheap lunch at a favorite Vietnamese restaurant, got an education instead.


Categories > Foreign Affairs

The Founding

Your Constitutional Authority

The Heritage Foundation has put on-line its Guide to the Constitution, co-edited by David Forte and Matthew Spalding. This is a line-by-line commentary with major essays by significant legal scholars. Heritage does terrific work with its instant digests on contemporary policy issues, but this is something different, yet relevant to policy debates.

Take this analysis of the first line of Article II of the Constitution, on the nature and scope of executive power, "the vesting clause." There's even a teacher's companion guide, besides the essay by UVA law professor Sai Prakash and a brief (and diverse) bibliography of legal scholarship.

Or consider co-editor Forte's thoughts on the commerce clause, now at the heart of the Obamacare case, to be decided by the Court this term. Are you clear on the meaning of "to ... regulate commerce ... among the several states"? And so it goes, line by line, through the whole Constitution.

The achievement deserves favorable comparison with the best encyclopaedias of legal thought, such as the grand project of the late Leonard Levy. And besides Heritage's is on-line, will be constantly updated (not a living Constitution, but a lively commentary) and free.

Categories > The Founding


Government of, by, and for Bureaucracy

The unethical investigation (and subsequent 2008 conviction) of the late Senator Ted Stevens (R-Alaska) for alleged ethics violations reveals a crisis in democratic government: When Department of Justice investigators influence elections--in this case, one that gave Senate Democrats a veto-proof majority--they are showing themselves to be the rulers they have in fact become.

In many reapportionment schemes, the legislators pick their constitutents. In the Stevens investigation, where the judge held government lawyers in contempt after the trial, the bureaucrats in effect knocked off a Republican incumbent, who lost by fewer than 4,000 votes a week after the trial. The court-appointed counsel concluded that the prosecution withheld potentially exonerating evidence from the defense. Even Eric Holder had to discipline the lawyers, with one committing suicide. (It should be noted that a Republican Administration might not have been able to control their own staff.)


Categories > Courts

Health Care

In re Rush

We misheard Rush on the 30 year-old law student demanding free contraception, via Obamacare mandate.

UPDATE: Now he apologizes.

Categories > Health Care


The 84%

of those polled disapprove of Congress, according to a recent poll. But surely some poll has broken down the stats in following ways:  Do you disapprove of Congress because it is too Republican, too Democrat, blocking Obama, ignoring the deficit, etc. Those numbers should be added to the total who approve of Congress, perhaps considerably improving the figures.  (Occasionally there are polls showing disapproval of the Tea Party, etc.) Those results would be more important for the congressional elections, though of course reapportionment slashes the effects of general disapproval. Has anyone drilled down to get these numbers?

Has anyone polled Congress on the approval/disapproval numbers they give to themselves? Bet it's not far from the public figures.

Categories > Congress


SOPA Must Be Defeated

When I had first heard of the Stop Online Piracy Act and commented on it some weeks ago, I had not had the opportunity to delve too much into what exactly the bill and its sister in the Senate--PIPA--entail. I have since had an opportunity to explore SOPA more and in that time have actively started to advocate its defeat. Online piracy is a huge problem that leads to billions of dollars being lost every year; most of my family works in the entertainment industry--film, television, music, and stage--and I understand why Hollywood is so behind stopping online piracy. The same goes for corporations and inventors, who lose formulas and business plans to competition, mostly in Asia, with alarming frequency. Nonetheless, the solution is not to give the government the power to become master of the Internet. Potentially under SOPA, just for having a link to a foreign or domestic website that may have pirated content on it is enough for the Department of Justice to shut the website with the link down. This means that the government will be prescreening Google, YouTube, Facebook, Twitter, MySpace, the blogosphere, and a multitude of other websites, with the authority to shut them down if they do not censor whatever the government orders them to censor.

As Eric Holder's administration has shown, the Department of Justice ought not to be trusted with such authority. As the incompetent, overbearing, and at times downright nefarious Transportation Security Administration has exhibited, some things created for our "protection" can end up proving to be far too much of a burden to reasonably stand. Furthermore, with the examples of China, Iran, and North Korea before us, we ought to be leery of anything granting the federal government any overreaching powers over the web. Piracy of entertainment and trade secrets must be reined in, but not at the cost of Internet freedom. SOPA has good intentions, but it does not too. Whatever bill is past must have a few more checks on government power here so that the medicine is not worse than the poison.
Categories > Technology


Senate Declines to Clarify Domestic War Powers

In another example of the unambitious character of the United States Senate today, there has been a decision to not make a decision about what limits ought to be placed on the war powers of the President in regards to American citizens. The Senate passed a major defense bill and voted 99-1 to make it clear that they were not taking a stand on the currently-ambigious rules around citizen detention. In the same thinking of "We have to pass the bill to find out what's in it", Senator Carl Levin (D-MI) said that "We make clear that whatever the law is, it is unaffected by this language in our bill." Whatever the law is. Yes, our lawmakers do not even know what current law is regarding the right of the Executive Branch to detain or execute American citizens on American soil without any due process or review.

Proponents of great powers for the Executive in war argue that we are now in a state of war and that the president has both the authority and the responsibility to exert his power to defend us. The problem is, though, that the Bush Administration turned its authorization to use force against Al Qaeda and those responsible for 9/11 into a general and ambiguous war on Terror itself, leaving it as open-ended and vague as the War on Drugs and the War on Poverty-- though much more dangerous, as it involves the Executive Branch using lethal force. There were no parameters set by either President Bush or Congress to define our goals, and thus the "War on Terror" is now the longest-running conflict in the republic's history. The Obama Administration has assassinated two Americans on different occasions so far this year--terrorist suspect al-Maliki and his teenage son--in the Middle East. There is an argument to be made in al-Maliki's case that they were enemy combatants in an active war zone, and thus the President was authorized to kill him. The current question is whether the Executive Branch has the power to executive or permanently detain in military jails American citizens who are suspected terrorists on American soil itself. This seems to be in conflict with both Posse Comitatus and Sections 2 and 3 of Article III of the Constitution. 

We are fighting a new kind of war, that has been left open-ended for two presidencies now. It is hard to tell the difference between war time and peace time. If Congress is unready to yet figure out its role in when to decide when it is peace time and war time (since they have obviously decided to abscond from being involved in warmaking altogether, as evidenced by the Libyan intervention), they should at least look into what limits the President has on him within our own borders. We need clarification. The lawmakers need to do their jobs and decide what the law is.
Categories > Congress


Internet Freedom and Intellectual Property

For the last couple of years I have been telling friends of mine who are interested in law that, if their interest is in helping craft law and making a good deal of money while doing it, they ought to go into intellectual property and copyright law. This is where the major fights are popping up, made no more clear right now than in the battle brewing within the halls of Congress. The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) are under debate right now, intent on helping save intellectual property--primarily music and film from Hollywood--that is being pirated and copied and distributed en masse without anything being paid to the creators and owners of those works. SOPA and PIPA would punish companies that post pirate content online and allow the government to shut down websites that post intellectual property. This is mostly aimed at foreign websites, particularly in Asia, that illegally traffic a great deal of American work to the huge black market. Proponents say it is a necessary step to protect the labor and property of U.S. firms from rampant piracy. Opponents claim that this is giving the government and certain firms far too much power, and that it will lead to dangerous curtailments of internet freedom.

The divisions in this show how contentious and big the intellectual property battle will be, and all sorts of odd alliances are appearing. In favor of SOPA you have Motion Picture Association of America, the U.S. Chamber of Commerce, the AFL-CIO, the Recording Industry Association of America, Netflix, the Directors Guild of America, Viacom, Nike, L'Oreal, Ford, Pfizer, NBC Universal, the National Basketball Association, and scores of trade unions, business organizations, and entertainment industry groups. Yes, the AFL-CIO, Hollywood, and the Chamber of Commerce all working together. Silicon Valley represents the bulk of the opposition, which includes Google, Yahoo, Facebook, Twitter, AOL, eBay, Wikipedia, and Mozilla, in addition to groups such as the Brookings Institution, American Express, Reporters Without Borders, the ACLU, Human Rights Watch, and the Tea Party Patriots. The Tea Party allied with the Silicon Valley giants and ACLU.

Congress is even more split, with all sorts of unusual alliances being made over SOPA. In favor of the act are a diverse sets of members including Howard Berman (D-CA, from Hollywood), Mary Bono Mack (R-CA), Steve Chabot (R-OH), Elton Gallegly (R-CA), Adam Schiff (D-CA), Marsha Blackburn (R-TN), Bob Goodlatte (R-VA), Lamar Smith (R-TX), Senator Marco Rubio (R-FL), Senator Diane Feinstein (D-CA), Senator Chuck Grassley (R-IA), and Senator Barbara Boxer (D-CA). Opponents, meanwhile, include Darrel Issa (R-CA), Nancy Pelosi (D-CA), Ron Paul (R-TX), Senator Rand Paul (R-KY), Michele Bachmann (R-MN), Senator Maria Cantwell (D-WA), Zoe Lofgren (D-CA), Senator Patrick Leahy (D-VT), and John Conyers (D-MI). Odd, yes, to see Rubio, Feinstein, Boxer, and Grassley pitted against Issa, Pelosi, the Pauls, and Bachmann. I have not yet decided, but at this pointed I am leaning towards the argument against SOPA in its current form, and I say that as someone who has a very vested interest in protecting intellectual property, especially that of the entertainment industry. I just fear that there are not enough safeguards in SOPA in its current form, and that it would thus be dangerous to internet freedom and pose a direct threat to social media, Facebook and YouTube in particular. It is imperative that we find a way to stop online piracy, which costs American firms hundreds of billions of dollars a year, but we need to do it in a way that balances protecting both internet freedom and intellectual property.
Categories > Technology

Men and Women

The Giffords Interview

If you are in need of an uplifting tale, do check out the recent interview with Congresswoman Gabrielle Giffords. The determination and relationship between her and husband Mark Kelly are remarkable. The speed of her recovery is awesome. The interview also sheds a lot of light into the damage done to her brain by the madman's bullet, and how that affected her. I cannot even begin to fathom how one can lose control of one's speech and vocabulary. To know what a chair is, but to keep calling it "spoon" or "cheeseburger" must be frustrating. But, in a sign of the remarkable thing that is the human mind, it is able to recover and relearn and remake itself. One of the doctors in the interview said that different parts of the brain will sometimes take over the functions of the damaged parts. Music plays a large role in helping to gain both physical balance and word recovery (something I remember complaining about in my schooling days--why is it so easy to remember the lyrics of a song but not certain mathematical formulas or the names of all of the Caesars?). Again capturing the amazingness of this human thing--the doctors said that they know what parts of the brain control speech and movement, but not optimism, ambition, charisma, and these other qualities that Giffords exhibited. People were unsure if she would get them back. As the interview shows, she certainly did. Good for her. Watch the whole thing when you get a chance.
Categories > Men and Women


On Grading Congress

Public approval for Congress dips into the single digits.  I'm not surprised for the reason often given--people (especially in gerrymandered districts) like their own crook--and distrust all the others.  Hence, a better measure of how people will vote would be reflected in, e.g., whether they think Obamacare should be repealed. 

But I also raise the question whether the members of Congress would give any higher rating of their own institution. Somehow I doubt it.  The separation of powers and the bicameral Congress create such frustrations.  But there is only one President.

Categories > Congress