Minor Thoughts from me to you

Kevin D. Williamson has multiple points to make. This is the one that I particularly agree with.

Fourth, and related: The Democrats don’t seem to understand what it is they are really fighting, which, in no small part, is not the Republicans but the constitutional architecture of the United States. The United States is, as the name suggests, a union of states, which have interests, powers, and characters of their own. They are not administrative subdivisions of the federal government. All that talk about winning x percent of the “national House vote” or the “national Senate vote” — neither of which, you know, exists — is a backhanded way of getting at the fact that they do not like how our governments are organized, and that they would prefer a more unitary national government under which the states are so subordinated as to be effectively inconsequential. They complain that, under President Trump, “the Constitution is hanging by a thread” — but they don’t really much care for the actual order established by that Constitution, and certainly not for the limitations it puts on government power through the Bill of Rights and other impediments to étatism.

I know people who will argue that the "national House vote" does indeed exist. And they probably are voting with national outcomes in mind. But all politics is local and voters can only vote for the candidates on their own ballot. And as much as people give Congress — as an overall body — abysmally low grades, they tend to give their own representatives a much higher grade.

That's why Congress has such a low rate of turnover: everyone hates everyone else's representatives, but loves their own. And that's why I don't think that a "national House vote" truly exists. I can imagine a world in which a national vote does exist, but it's a different world than this one, with a different electoral system.

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George Will, writing in The Washington Post.

The principle: The congressional Republican caucuses must be substantially reduced. So substantially that their remnants, reduced to minorities, will be stripped of the Constitution’s Article I powers that they have been too invertebrate to use against the current wielder of Article II powers. They will then have leisure time to wonder why they worked so hard to achieve membership in a legislature whose unexercised muscles have atrophied because of people like them.

…

Ryan and many other Republicans have become the president’s poodles, not because James Madison’s system has failed but because today’s abject careerists have failed to be worthy of it. As explained in Federalist 51: "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place." Congressional Republicans (congressional Democrats are equally supine toward Democratic presidents) have no higher ambition than to placate this president. By leaving dormant the powers inherent in their institution, they vitiate the Constitution’s vital principle: the separation of powers.

Recently Sen. Bob Corker, the Tennessee Republican who is retiring, became an exception that illuminates the depressing rule. He proposed a measure by which Congress could retrieve a small portion of the policymaking power that it has, over many decades and under both parties, improvidently delegated to presidents. Congress has done this out of sloth and timidity -- to duck hard work and risky choices. Corker’s measure would have required Congress to vote to approve any trade restrictions imposed in the name of "national security." All Senate Republicans worthy of the conservative label that all Senate Republicans flaunt would privately admit that this is conducive to sound governance and true to the Constitution’s structure. But the Senate would not vote on it -- would not allow it to become just the second amendment voted on this year.

This is because the amendment would have peeved the easily peeved president. The Republican-controlled Congress, which waited for Trump to undo by unilateral decree the border folly they could have prevented by actually legislating, is an advertisement for the unimportance of Republican control.

​Yes, exactly this. Why run for Congress if you're not going to actually use the office to do something, to stand for something, and to act as a source of power independent of the President? If the President is wrong -- of your party or not -- act! You have the power, you have only to exercise it.

If the Congress is unwilling to exercise its power, it should be shown the door.

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Tamara Tabo writes at Above the Law.

Liberal critics frequently bash Thomas for haplessly following the lead of fellow conservative Justices such as Antonin Scalia, unable to form reasoned opinions on his own.

Thomas’s many dissents belie the criticism that he marches in lockstep. This Term, he holds the weakest voting relationships of any Justice with his or her fellow Justices. His rate of disagreement with Justice Sonia Sotomayor — currently 57% — is the weakest voting relationship of any two Justices on the Court. Even his agreement rates with Scalia and Roberts amount only to 77% and 66%, respectively — far cries from the 90+% relationships between some other Justices.

…Thomas’s dissents often represent radical departures from the fundamental approach of the rest of the Court. He’s not quibbling over factual judgment calls. He’s often applying an entirely different method of deciding the case. ​> …Clarence Thomas is either unafraid of correcting bad precedent, or he is flagrantly disrespectful of stare decisis, depending upon how one looks at it. His fidelity to text might seem downright obsessive, even to a fellow originalist like Justice Scalia. Thomas has the tunnel vision of a man sure of his method, regardless of what his colleagues see. ​ I've long appreciated Justice Thomas. He doesn't write with the wit and sarcasm of Justice Scalia. But his opinions are always principled and well reasoned.

I love his willingness to go with what's right, regardless of the precedent established by the errors of previous courts. When it comes to upholding the Constitution as written, Justice Thomas has no peers.

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Last weekend, Bush torture lawyer John Yoo wrote about his disgust with the Manning verdict.

Bradley Manning caused one of the most harmful leaks in American history. He released into the public eye the identities of foreigners helping the U.S. in war zones, the means and methods of U.S. military operations, and our sensitive diplomatic communications with other nations. Lives — American and foreign — no doubt were lost because of the leaks. If anyone can think of a more harmful blow to U.S. intelligence in our history, let’s hear it. 

I've heard other people refer to the Manning leak as one of the most harmful in American history. But I don't think I've ever seen anyone offer any proof for that assertion. John Yoo needs to do something to prove that it was the most harmful leak in American history. Where's the evidence?

Manning published data that supposedly contained the names and identities of various American (and allied) agents who were working undercover. The data also allegedly contained the names of various Iraqis and Afghanis who were helping us, against the terrorists and the Taliban. I've seen people allege that our enemies would use that data to punish our friends.

It seems like it would be pretty easy to quantify how deadly this leak was, if it was deadly. Which agents and allies, named in the leaked documents, have since been killed, terrorized, or harmed by our enemies? Whose lives were lost because of Manning's leak? If this was a deadly leak, wouldn't that be dramatic proof? Wouldn't something have come out in a Congressional hearing, Department of Defense or Homeland Security press release, or presidential interview? Wouldn't the Administration and its allies constantly trumpet how harmful Manning's leak was?

Unless I've completely missed it, no one has done anything of the sort. I'm not convinced that Manning's leak was the most harmful in American history. And I'm not inclined to take the bald-faced word of a lawyer who thinks that the Constitution places no restraints on the President's powers to order people tortured.

Baylen Linnekin, writing at Reason.com:

If a federal agency has the power to bar a court from overturning or halting the actions of that agency—an administrative rulemaking body to which Congress delegates far too much power already—then that body may (and will) act with impunity. The power of such an agency would, in fact, exceed that of Congress itself.

Such a law would be worse than almost any that preceded it in this country. Under no theory of agency with which I'm familiar can one delegate more power than one has. And yet this new amendment to the GMO law appears to place some USDA powers almost entirely outside the scope of judicial review.

In effect, this amendment gives the USDA the power to ignore a federal judge’s ruling in some cases. It would take the power of judicial review out of the hand of judges, crumple it up, toss it on the ground, step on it, and set it ablaze.

I know many people have an irrational hated of genetically modified food. When I first heard about this provision, I just assumed that it would protect Monsanto against these biased attacks. This analysis completely changes my opinion. Congress should vote this down.

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George Will offers a strong defense of campaign funding and points out that spending doesn't buy elections.

The Post, dismayed about super PACs, reports “a rarefied group of millionaires and billionaires acting as kingmakers in the GOP contest, often helping to decide, with a simple transfer of money, which candidate might survive another day.” Kingmakers? Where’s the king?

If kingmaking refers to, say, Sheldon Adelson, the Las Vegas casino owner, keeping Newt Gingrich’s candidacy afloat with large infusions to the super PAC supporting Gingrich, then kingmaking isn’t what it used to be.

He also defends the constitutionality of campaign funding.

... The court’s unremarkable logic was that individuals do not forfeit their First Amendment speech rights when they come together in corporate entities or unions to speak collectively. What is the constitutional basis for saying otherwise?

... Actually, Citizens United has nothing to do with Adelson and others who are spending their own money, not any corporation’s. People have done this throughout the nation’s life, and doing so was affirmed as a constitutional right in the court’s 1976 Buckley v. Valeo decision.

And he defends the right of relative outsiders to influence the political process.

Critics of super PACs — critics who were remarkably reticent in 2004 when George Soros was lavishing his own money on liberal advocacy — often refer to them as “outside groups,” much as Southern sheriffs used to denounce civil rights workers as “outside agitators.”

Pray tell: Super PACs are outside of what? Is the political process a private club with the parties and candidates controlling membership?

It might be more wholesome for the speech-financing money that is flowing to super PACs to go instead to the parties and candidates’ campaigns. But the very liberals who are horrified by super PACs (other than Barack Obama’s) have celebrated the laws that place unreasonable restrictions on such giving.

The whole thing is worth reading and pondering.

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Paul Ryan, with a very, very good speech on the importance of the Constitution and on the primacy of the rule of law, in our political and economic system.

We can strengthen our defense of liberty if we remember to keep in mind those who are struggling to make ends meet. What makes our Constitution such an extraordinary document is that, in making the United States the freest civilization in history, the Founders guaranteed that it would become the most prosperous as well. The American system of limited government, low taxes, sound money and the rule of law has done more to help the poor than any other economic system ever designed.

I want to talk today in particular about the last of those – the rule of law, which is absolutely essential to all the other benefits of our system, to the prosperity and freedom of our country, and to the well being of all Americans, especially the most vulnerable.

What is the rule of law? When the Declaration of Independence cited as justification “the laws of nature and of nature’s God,” the Founders were channeling Aristotle, who wrote that the rule of law in principle means that, quote, “God and intellect alone rule.”

Aristotle defined the law as “intellect without appetite,” by which he meant justice untainted by the self-interest of those in power.

The great difficulty we encounter in striving to meet Aristotle’s ideal was best summed up by James Madison: “if men were angels, no government would be necessary. And if angels were to govern men, neither external nor internal controls on government would be necessary.”

But, as Madison reminded us, men are no angels, and government is “administered by men over men.” Grounded in a proper understanding of human nature, our Founders tackled this challenge head-on with a brilliant Constitution and a healthy separation of powers, binding all men to the same set of laws and preventing any one man or group of men from gaining enough power to declare themselves above the law.

Do read the whole thing.

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Wisconsin Judge Patrick J. Fiedler, on your fundamental rights.

"This court is unwilling to declare that there is a fundamental right to consume the food of one's choice without first being presented with significantly more developed arguments on both sides of the issue."

"no, Plaintiffs to not have a fundamental right to own and use a dairy cow or a dairy herd;

"no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;"

"no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice..."

If Americans don't have a fundamental right to produce and consume the foods of their choice, what rights do they have?

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I listen to the President's Weekly Radio Address every week. It's usually a painful process, since I almost always disagree with the President. (That's been true for both President Bush and President Obama, in case you're wondering.)

Last week's address was particularly painful. It was almost scary to listen to. The President spoke quite passionately about his desire to tax big banks to pay for the assistance they've received over the past 2 years. This is part of what he had to say (emphasis added by me).

Much of the turmoil of this recession was caused by the irresponsibility of banks and financial institutions on Wall Street. These financial firms took huge, reckless risks in pursuit of short-term profits and soaring bonuses. They gambled with borrowed money, without enough oversight or regard for the consequences. And when they lost, they lost big. Little more than a year ago, many of the largest and oldest financial firms in the world teetered on the brink of collapse, overwhelmed by the consequences of their irresponsible decisions. This financial crisis nearly pulled the entire economy into a second Great Depression.

As a result, the American people - struggling in their own right - were placed in a deeply unfair and unsatisfying position. Even though these financial firms were largely facing a crisis of their own creation, their failure could have led to an even greater calamity for the country. That is why the previous administration started a program - the Troubled Asset Relief Program, or TARP - to provide these financial institutions with funds to survive the turmoil they helped unleash. It was a distasteful but necessary thing to do.

Many originally feared that most of the $700 billion in TARP money would be lost. But when my administration came into office, we put in place rigorous rules for accountability and transparency, which cut the cost of the bailout dramatically. We have now recovered most of the money we provided to the banks. That's good news, but as far as I'm concerned, it's not good enough. We want the taxpayers' money back, and we're going to collect every dime.

That is why, this week, I proposed a new fee on major financial firms to compensate the American people for the extraordinary assistance they provided to the financial industry. And the fee would be in place until the American taxpayer is made whole.

Reading the President's address now, it sounds bland and reasonable. But listening to it was a different experience. The President sounded angry and distinctly sounded like he wanted to punish the banks for ever daring to make trouble. He sounded like what he really wanted was to make the banks pay for the entire cost of the stimulus bill. I was deeply disturbed, as I listened to the speech, to the hear the President so angrily attacking and villianizing a specific industry.

Here's the thing. Not all of the banks that received government help wanted government help. Some of them were strong-armed into accepting the help. The President's new "fee" doesn't account for that. Nor does it account for the fact that not all large banks even received help. Nor does it account for the fact that some banks were healthy throughout the crisis and had no rule in causing the crisis. No, the President's "fee" taxes all banks equally, just for the sin of being big.

As I listened to the speech, I wondered if the plan was even Constitutional. As I said, it sounded like he really wanted to lay into the banking industry, to punish it. And the Constitution specifically forbids a "bill of attainder". What's that? It's when Congress passes a bill declaring someone guilty of a crime -- and punishing them -- without giving that person the benefit of a trial. And the President's language and tone sounded dangerously close to someone who wants to declare the entire banking industry guilty of "crimes against America" and then punish them.

It turns out, that I'm not the only person to think this is un-Constitutional. John Carney writes in The Business Insider Law Review that he's recently concluded that the proposed bank tax is an illegal bill of attainder.

Read his full piece for a much better explanation of the concept of a "bill of attainder", as well as some great examples. Here is his conclusion.

The Financial Crisis Responsibility Fee is unconstitutional on its face. It is as if the Obama administration had urged a tax called "The Fee That Violates Nonattainder Principles." Assigning responsibility after the matter and levying penalties is reserved for the judicial branch that is restricted to using already existing laws and treating similarly situated people equally. The Obama administration wants to assign responsibility for the financial crisis and levy a fee, while exempting its favored automakers. This is exactly the sort of thing the Attainder Clause was put in place to prevent.

Last week, Justice Clarence Thomas spoke on the Constitution. Here are part of his remarks. How to Read the Constitution - WSJ.com

As I have traveled across the country, I have been astounded just how many of our fellow citizens feel strongly about their constitutional rights but have no idea what they are, or for that matter, what the Constitution says. I am not suggesting that they become Constitutional scholars -- whatever that means. I am suggesting, however, that if one feels strongly about his or her rights, it does make sense to know generally what the Constitution says about them. It is at least as easy to understand as a cell phone contract -- and vastly more important.

The Declaration of Independence sets out the basic underlying principle of our Constitution. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ..."

The framers structured the Constitution to assure that our national government be by the consent of the people. To do this, they limited its powers. The national government was to be strong enough to protect us from each other and from foreign enemies, but not so strong as to tyrannize us. So, the framers structured the Constitution to limit the powers of the national government. Its powers were specifically enumerated; it was divided into three co-equal branches; and the powers not given to the national government remained with the states and the people. The relationship between the two political branches (the executive and the legislative) was to be somewhat contentious providing checks and balances, while frequent elections would assure some measure of accountability. And, the often divergent interests of the states and the national government provided further protection of liberty behind the shield of federalism. The third branch, and least dangerous branch, was not similarly constrained or hobbled.

Apparently, Justices no longer have to fact check their Supreme Court opinions or dissents. Justice Stevens' dissent had two rather major errors:

Comment on to previous post points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."

Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted -- commentators noted this was pretty suggestive the court hadn't bothered to read Miller before citing it. First thing you look for in reading a case is what happened below, and what the Court do to that. Very first thing.

I'd add that at 41 he refers to:

"In 1901 the President revitalized the militia by creating the 'National Guard of the several States,' Perpich 496 U.S. at 341 and nn. 9-10."

Reading that part of Perpich v. Dodd: It says in 1901 President Roosevelt called for reforming the militia. He didn't create the National Guard (where would he have had the authority?)

How much should I trust the rest of his dissent?

The Heller decision was a big win for the 2nd Amendment: it established that citizens do have a right to own guns. Unfortunately, that decision only applies to the federal government. What about the states? It will take a new court case -- and a new decision -- to establish whether or not the 2nd Amendment applies to state and local governments.

Well, that didn't take long. It looks like that new court case is on it's way: SCOTUSblog » New case tests Second Amendment's reach:

In a newly filed lawsuit in federal court in Chicago, two gun rights organizations and four individuals asked that the Second Amendment be extended to block strict gun laws at the state and local level. "The Second Amendment right," the complaint contended, "is incorporated as against the states and their political subdivisions pursuant to the Due Process Clause of the Fourteenth Amendment."

The case, McDonald, et al., v. City of Chicago, et al. (District docket 08-3645), was filed in U.S. District Court in Chicago to challenge a city ordinance that bars registration of handguns with only a few exceptions, and that limits registration of other guns. The case was assigned to Senior District Judge Milton I. Shadur. The complaint can be read here.

Over at Winds of Change, the Armed Liberal posts some reflections on patriotism. What does it mean in a post-modern world? Is it worthwhile? Is it distinguishable from mere nationalism? What does American patriotism mean, in a nation that has been formed from one ethnicity after another (and continues to be reformed and remodeled each year)?

Now I've argued on and on that we need an anticosmopolitan liberalism, one rooted firmly in the American Founding if liberalism is going to get any traction here in US politics. I've slagged and been slagged by the usual cast of Netroots characters over this issue, and I'll point out that the Netroots liberalism for all the sound and fury hasn't signified much in the political scene except to - almost certainly - hand the nomination to the least liberal candidate running, Hillary Clinton.

The basis for much of my argument has been the work of John Schaar, a little-known political theorist who happened to be one of my professors. Who I admit I should have paid more attention to back then.

The work I keep pointing to is his work, 'The Case for Patriotism' (excerpted here).

Abraham Lincoln, the supreme authority on this subject, thought there was a patriotism unique to America. Americans, a motley gathering of various races and cultures, were bonded together not by blood or religion, not by tradition or territory, not by the calls and traditions of a city, but by a political idea. We are a nation formed by a covenant, by dedication to a set of principles, and by an exchange of promises to uphold and advance certain commitments among ourselves and throughout the world. Those principles and commitments are the core of American identity, the soul of the body politic. They make the American nation unique, and uniquely valuable among and to the other nations. But the other side of this conception contains a warning very like the warnings spoken by the prophets to Israel: if we fail in our promises to each other, and lose the principles of the covenant, then we lose everything, for they are we." [emphasis added]

This sounds right to me. It's the idea I struggled to articulate last summer, in my posts about immigration.

This, then, is the challenge for America. How do we change -- culturally, demographically, and ethnically -- while still retaining that political idea, that commitment to a set of principles that make America, America?

Furthermore, what, exactly, are those principles? What is that idea? What set of principles are we committed to? For that, I think we need to go back to principles set out in the Declaration of Independence and the framework established in the Constitution of the United States.

More on that, in the future.