Re: Townhall.com – 2/11/2009 – “The Hell With Our Constitution” – Walter E Williams

Williams says the Constitution has “no specific authority conveyed for the government to spend money on global-warming research”. Global-warming research has the same constitutional justification that the research of the National Weather Service has. Lots of government’s activities are not specifically (by name) authorized in the Constitution but are implied by being “necessary and proper” to execution of one or more of the Constitution’s enumerated powers. The Constitution does not specifically authorize either military weapon research or an air force, but the necessity keeping our weapons up to date, including the adoption of air based weapons and the forces that use them in supporting the objectives of the armed forces (which consisted of only land and naval forces at the time of the Constitution) is undeniable. So too is the necessity of understanding climate and weather --- these are “necessary and proper” understandings in the regulation of interstate and international commerce. My reasoning follows the Court’s reasoning in McCulloch vs Maryland (1819) which held that the Constitution recognized Congress’ power to take action to implement its enumerated powers.

Williams cites Higgs that “federal courts had respect for the Constitution as late as the 1930s”. But as early as 1824 in Gibbons vs Ogden, Chief Justice John Marshall wrote “[regulatory] power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution”. In Burrows-Giles Lithographic Co vs Sarony (1884), the Court held that copyright protection could be extended to photographs by interpreting “author” as originator rather than as writer. These, and lots of pre-Roosevelt Supreme Court decisions may be construed by Williams and others as the unconstitutional actions of such infamous judicial activists as John Marshall, but to blame Roosevelt for the long history of Court precedents allowing Congress to react to situations unimagined at the time the Constitution was written is just plain absurd.

Whether “global-warming research, urban mass transit, food stamps, unemployment insurance, Medicaid, or countless other items in the stimulus package” are Constitutionally reasonable items for inclusion in a stimulus package is dependent on only two things: (1) Is there an enumerated power for Congress related to these items, the answer to each of the above items being yes, the Commerce clause; and (2) Are these items “necessary and proper” in carrying out Congress’ function, and again the answer in my opinion is yes. But there is a third test we should all consider, and that is whether these items ought to be included in the stimulus package even if Congress has the right to do so. To this, I’d answer: no to global-warming research which would support Commerce’s constitutional duties but is neither necessary nor proper in dealing with our current economic problems; yes for urban mass transportation which would be constitutional under the Court’s pre1900 interpretation of interstate as being part of an transportation network including more than one state and because it is a good source of jobs to rekindle the economy; yes for food stamps and unemployment insurance which are long-standing and pre-existing programs and can easily be targeted to those displaced from jobs due to the current economy; and no for Medicaid which again is a pre-existing program but bears little relation to or effect on the current economic crisis.

It is my personal belief that arguments like Williams’ are reflexive applications of the wrong principle at the wrong time --- sort of like: I don’t like this and I don’t want this but I don’t have the votes to defeat it, therefore it must be unconstitutional.

Some of the provisions of the stimulus package are unnecessary and perhaps counterproductive to fighting our current economic crisis. But they just aren’t unconstitutional!

Re: Townhall.com – 1/5/2009 – “Terrorists’  Rights Verses Crime Prevention” – Rachel Alexander

Alexander says “Civil libertarians, including prominent conservatives like Rep. Ron Paul and former Rep. Bob Barr … have protested the detainment and interrogation methods used on suspected terrorists at Gitmo, wiretapping, and other methods of surveillance. They don’t represent the majority of Americans, many who privately say anyone involved with terrorism should be executed”. Alexander confuses the “suspected terrorists” of Paul and Barr with the “terrorists” that the majority of Americans have little sympathy for (but who do not necessarily want to see them executed since the majority of Americans are against the death penalty) with those “involved with terrorism” (an ambiguous class of individuals presumably including relatives of terrorists). Alexander’s failure to make these distinctions illustrates a profound lack of understanding of the spirit and letter of the Constitution as it was written.

Alexander says “While some of these “rights” make sense in order to prevent the government from falsely imprisoning innocent people, at some point there is a line where these specified additional “rights” for suspected terrorists begin to infringe upon the rights of innocent Americans. How these terrorists’ “rights” have been created and defined has mostly been decided in the U.S. courts by judges, not by Congress, by overturning legislation passed by Congress and signed by the President.”  Those familiar with the Constitution might agree that the “necessary and proper” clause [Article 1 Section 8 #18] and the “Habeas Corpus” clause’s exception for “Rebellion or Invasion” [Article 1 Section 9 #2] appear to give Congress the power to deny such rights from “suspects”. The “Executive Vesting” clause [Article 2 Section 1 #1] gives the President the power to unilaterally issue executive orders (actually more like “regulations” than laws) under the Presidents unique role as “Commander in Chief” of the armed forces and “Commander of Militia” [Article 2 Section 2 #1] that may affect civilians during declared emergencies, but it is unclear how executive orders could apply beyond this. Over time, “activist judges“ have extended the scope of Presidential powers beyond what seems to be the Constitution’s original intent, especially in the area of law enforcement [Nixon vs Fitzgerald (1982)]. However, all this is moot, because the Bill of Rights, which succeeds the above mentioned clauses of the Constitution, puts limits on Presidential or Legislative action that stops the President of the Legislature from denying any rights enumerated in the Bill of Rights from anyone (except active military or militia in times of war or public danger), even suspected terrorists. Those rights are protected from governmental denial based on any and all presumed authorization under the preceding provisions of the Constitution. In fact, it is only “activist judges” who could take away such protection --- non-activist judges would protect those clear Constitutional rights from the abuse of the President or the Legislature.

Alexander says “Many of the anti-terrorism methods being attacked by civil libertarians involve new methods and areas of communication never addressed nor contemplated by the Constitution or Congress”. Airplanes and their use in war were unknown, unimagined, and unaddressed in the Constitution, but only an idiot would conclude that an Air Force could not be funded by the Legislature, ruled by the regulations of the Legislature or commanded by the President under the constitutional provisions for the land and naval forces. So why should the right of citizens to be “secure in their persons, houses, papers, and effects” against searches and seizures [4-th Amendment] exclude e-mail communication. If the air force is a military branch, then why aren’t private e-mails papers?

Alexander says “there is no absolute right to be free of wiretapping regardless of who you are, there is always some way to get an emergency order authorizing one”. Alexander is correct --- there is a way, and that way is specified explicitly in the 4-th Amendment as “upon probable cause, supported by an oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” and in the 5-th Amendment requirement for the “due process of law “.  Court decisions, dating back to 1765 England, form an extensive set of precedents defining when and how these clauses are to be implemented.  Only the most activist judge would ever find that the Legislature or President may overturn these standards without court muster.

I personally believe that certain constitutional protections should not have been extended to non-citizens, especially to non-citizens acting outside the boundaries of the United States, and believe that “Military Regulations” clause [Article 1 Section 8 #14] gives sufficient authority for Legislature to define what rights non-citizens have in foreign conflicts pretty much without Court review. But as a loyal American familiar with the terms of the Constitution, I recognize the power of the Court to step in to stop actions beyond what the Constitution allows for US citizens. And no one can convince me that military regulations or executive orders or any other means of action by the Legislative or Executive branch can interfere with the Court’s responsibility to protect US citizens from government violation of their rights, even citizens suspected of being involved with terrorism.

Alexander says “Failing to take precautions to prevent” some action “tramples on the rights of innocent Americans”. But isn’t that what people always say when they want to take your rights away from you --- If we give people this right (say free speech, commercial rights, the right to bear arms, etc), some people will use their freedom to do you harm (speak poorly of you, sell you defective dangerous merchandise, shoot you. etc) so to protect you from them we must deny people (and you) this right. If Alexander thinks that 4th and 5th Amendment rights are too easily abused by evil people hiding their activities from the government to allow ordinary citizens these rights, I say Alexander is already very far down that slippery slope toward dictatorship.

Re: BreakPoint – 8/1/2008 – “A Civil Right to Gay Marriage” – Regis Nicoll

Nicoll errs when he fails to see distinction between biblical marriage (or whatever you want to call the marriage for procreation and family raising) and legal marriage (the license issued by the state and granting certain joint civil rights).

Let’s assume that biblical marriage is a natural right and non-biblical marriage is not a natural right. That leaves open the question as to whether non-biblical marriage should be a civil right.

As Nicoll admits, “Civil rights are legal privileges granted by the State to promote the common good of the governed”. What kinds of rights fit that description? Based on one of the three “civil rights” Nicoll cites (right to drink alcoholic beverages) I think he really should give some more thought to his definition of “common good of the governed”

I would assert that government should recognize as civil rights those actions that do no material harm even if they do not materially contribute to the common good of the governed. I think this is the brand of reasoning that would make the consumption of alcohol a right if anything will. Government should interfere with individual freedom only to the extent that is needed to promote the common good, and if something is not harmful it ought to be allowed, that is, anything that is not harmful to society should be a civil right. Debate over what level of harm makes an act not a right is another issue not relevant to this particular discussion.

Most do consider biblical marriage (heterosexual marriage for the purpose of procreation and family raising) a natural right.

Most people consider heterosexual non-biblical marriage entered into for reasons other than procreation and family raising a right. Many heterosexual couples marry because they love each other and want to spend their life together in a monogamous relationship. Perhaps they cannot have children for medical reasons. Perhaps they fear they cannot raise children because of economic, physical, or other limitations. Perhaps they fear that the pattern of their own mistreatment as children by their parents might be repeated by them on their own children. For whatever the reason, society recognizes that such marriages do no harm to it and grants the right for heterosexual couples to enter such marriages.

In the past (even in our own country) restrictions have been placed on the right of heterosexual marriages. But those restrictions such as limiting heterosexual marriage to partners of the same race have been stripped away, perhaps because heterosexual marriage was seen as a natural right but more likely because society recognized that such mixed marriages are either good for society or, if not a positive good, certainly do no harm.

Inevitably we will recognize that although homosexual marriage is not a natural right, whether or not it contributes to the common good is not material because in the long run, recognizing homosexual marriage actually does no real harm, and thus should be allowed by the state. My apologies to those who are upset by the thought of homosexual marriage, but like some people’s problems with marriages of mixed race or mixed religion, or even with childless marriages, protecting you from the pain of your own prejudices is insufficient reason to interfere with the free choice of others.

I think it is quite appropriate that religious institutions are allowed to restrict marriages performed under their jurisdiction to heterosexual couples of the same religion or religious denomination, especially if their sacred traditions explicitly disallow other types of marriages --- freedom of religion and all that. But I think that homosexual marriage has as many advantages and as few disadvantages to society as non-biblical heterosexual marriage and as such, should be considered a civil right.

I like to distinguish ceremonial marriage from civil union. A civil union is a government recognized “legal contract” between two persons that grants them specific civil rights, the right of inheritance perhaps being of most significance. Ceremonial marriage, on the other hand, is a “social contract”, granted and recognized by non-government social organizations (primarily but not necessarily religious) with no inherent legal rights. I have no problem with attaching the rights of civil union to ceremonial marriage, but I do have problems when the rights of civil union are restricted by qualifications imposed on ceremonial marriages by non-government institutions.

Government should be involved in the business of civil unions, open to any two persons of sufficient maturity, who want to spend their lives together in a single “family” regardless of any other characteristics they may have. Government should not be involved in ceremonial marriage, a social institution in of itself granting no legal benefits, other than by granting civil union rights to ceremonial marriages..