Why Do You People Keep Talking About The Constitution?

"Why do you people keep talking about the Constitution?"

In a recent comment on social media, my brother told me that someone threw that question at him.

Why do we keep talking about the Constitution? 

I'll answer your question with a question: 

Why do you people keep ignoring the Constitution?

Allow me to be clear about my notions.

God created man, the mind of man, the heart of man, to live in a perfect liberty resulting from relation with Him. You may not be a Christian, or the adherent of the many other faiths that adopt this view. But if you live in the United States, you live in a Nation that has adopted that view in its principal founding document, the Declaration of Independence. 

In the Declaration, Thomas Jefferson wrote, 

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.

Even if you dispute the actuality of the Garden of Eden story, you must catch the underlying truth: while capable of great and good, we choose low and bad, too often, to justify a claim that my preferences (or yours) are good, better, or best.

So when we gather in groups, couple, family, neighborhood, community, city, county, State, Nation, international treaty association, we really just are a collection of folks too often inclined away from the good, away from the great.

It's a truism. It isn't proof of perfect evil in every choice of every person.

It is sufficiently true that you should NOT trust your life, your liberty, your family, your future, to MY goodness and MY judgment.

Now my anarchically inclined friends see this part. That collectivism is just a way of describing group bullying. They reject all involuntary collectives and their authority, for, among others, this reason.

Those, like me, who have not fully made the leap to anarchy, have to find a method of preserving and/or pursuing the rights we claim to be ours innately, as an aspect of our created Nature: rights to life, to liberty, to pursue happiness. In our Nation, the basic idea of how things are, the essence of them, is stated in the Declaration of Independence.

The Declaration is a sort of birth certificate for the Nation. It states the basis of our parentage and lineage. It states the causes of liberation and independence from England. And it asserts the philosophical underpinnings of this joint project: Natural Law.

On the other hand, the Constitution of the United States is not our birth certificate.

It doesn't state our identity as a people.

All that it does, and it does this well in principle, less well in fact, is to provide for a general government of 13, and then, ultimately, 50 sovereign States, and in doing so, to provide a set of highly constrained, limited lines of authority and restricted powers. That Constitution separates legislative powers (the Congress), executive powers (the President), and judicial powers (the Supreme Court and the inferior federal courts).

Of course, the Bill of Rights, an important component of the Constitution were a demanded condition for support of the Constitution, because the States and the People feared the creation of an overarching, growing, and overwhelming leviathan in the federal government.

But still, this is what the Constitution constitutes: a framework for limited general government, respecting the retained powers and prerogatives of the States and of the People.

Now, why do we keep talking about the Constitution? And, why do you keep ignoring the Constitution?

Because the Constitution is, in fact, a straight jacket of federal power. It was designed to allow the monster of a federal government to be unleashed on the Nation, while restraining it in ways that would keep it in check and incapable of infringing the liberties and rights of the States and the People.

So we talk about the Constitution because we see the federal leviathan exceeding its bounds. And you ignore it because you prefer the seeming largess gained by that miscreantical behavior of that same leviathan.

Eighty years ago, the Supreme Court of the United States made a watershed switch, concluding that previously clearly understood limits on federal powers and federal interests had been misunderstood. In doing so, the Supreme Court unleashed the National Labor Relations Act and the Social Security Act on the Nation, and then in subsequent cases found that virtually any program directed toward the general welfare proposed by the Congress and approved by the President had a sufficient nexus to the power of Congress to regulate interstate commerce that it could be constitutionally justified.

So the rapacious hunger of the federal leviathan found a growing network of fans and lovers, folks that found that what the People would not do for them, what the States would not do for them, an errant Congress and an unbridled Court could inflict on them.

This dispute and contention is as real today and as recent as the horrible and unfounded idiocies penned by John Roberts when he saved Obamacare from constitutional challenges.

Want us to stop talking about the Constitution?

How about this?

Get your wants, needs, desires INSIDE the bounds of your own power to provide for them. Don't demand that your neighbor, or your neighboring State to give to you. Tamp down the adventurism of the overpowering federal government.

When the federal beast is reduced to a federal Chihuahua, we'll hold our peace.

US Citizenship: Membership Has Its Privileges

“Membership has its privileges.”

If you’re old enough, you remember the slogan, heavily promoted, for the American Express Card.  The long running campaign suggested that more was gotten by having the American Express Card than just a means of conducting cashless transactions. Even today, the campaign, officially retired in 1996 after a nine-year run, echoes in the company’s continued promotion of a broad array of services that constitute the “privileges” of being an American Express cardholder.

As citizens of the United States, we have a sense that we are “privileged.” Certainly, comparing the standard of living here with that in many other nations confirms that the average American is, in fact, very privileged. Still, many of us have friends, acquaintances, work associates, even relatives, who share in that higher standard of living, but who are not US citizens.

So, here is a question to consider:  if the United States decided to conduct a campaign to add additional citizens – not merely guests, permanent resident aliens, or undocumented persons – and it adopted as an adman’s pitch, “Citizenship has its privileges,” what would those privileges be?

Obviously, privileges of citizenship cannot simply be the same benefits that flow to anyone present within the territorial boundaries of the country. If it were, why bother to provide a system of naturalization that adds 700,000 naturalized citizens to our body politic each year? In the law, you are a citizen, or you are an alien. We work alongside, play alongside, recreate, shop and walk alongside aliens everyday. Yet, in the main, nearly one million aliens amongst us each year seek and get the “golden ticket” of citizenship. Also of note, a comparatively tiny number of citizens are rushing for the exit and renouncing our primal claims of citizenship.

So, then, what are the privileges of citizenship?

As it turns out, the answer depends on who provides it.

For example, the federal government lists these “benefits” of citizenship: bringing family members to the United States; the right to vote; the right to protection by the government when abroad, including when victimized by crime or endangered by disasters or emergencies; access to a larger pool of employment opportunities, as many federal jobs are conditioned on citizenship; the right to participate in a federal jury; and, a larger pool of federal student aid.

More specifically, if you ask the folks whose business it is to process applications for citizenship, the US Citizenship and Immigration Services, they supplement the above list with these additional “rights:” freedom of expression; freedom of worship; the right to a prompt, fair trial; the right to run for elective office; and, freedom to pursue “life, liberty and the pursuit of happiness.”

Attorneys in private practice note additional benefits of citizenship. If a naturalized citizen commits a crime and a permanent resident alien commits the same crime, unless the crime was one of fraud in applying for citizenship (think John Demjanjuk), the naturalized citizen cannot be deported to her home country. Her twin sister, the permanent resident alien, can be deported. Also, as lawyers will explain, the federal tax code exempts certain property transfers from a deceased spouse to a surviving one, but only if the spouse is a citizen.

Still, the foregoing benefits and privileges cannot fully answer the question.

Reading immigrants’ stories helps.

Opportunity. Freedom. A future with a future in it. Expressing appreciation for the sacrifices made by this Nation, particularly its military sons and daughters.

We tend to take these things for granted. The vast majority of Americans are not in reduced poverty, living, literally, moment by moment in fear of harms, whether from criminals, tyrants, famine, or otherwise. Nor have we lived all our lives – from cradle to grave – in a society that requires or prizes severe regimentation. We choose where we live. We choose what we study. We choose whether to pursue professions or to undertake trades. We even choose burial or cremation at the end of our days.

Some immigrants, particularly coming from lands of limited opportunity, note that America has been one place where everyone has the opportunity to be great, to stand apart from the crowd, to distinguish ourselves.

Just as Soviet-style regimentation is unfamiliar here in the US, many others come to America fleeing oppressions of one kind or another. For some, that oppression affects the most natural of human instincts: to propagate the species. The 1993 grounding of the Chinese merchant ship Golden Venture, followed thereafter by numerous asylum applications by Chinese nationals, brought new light to the brutality of China’s coercive one-child policy, enforced with nonconsensual abortions and sterilizations. Other repressive regimes have driving immigrants to America’s shores, including Myanmar, Communist Vietnam and Cuba.

I suppose that one privilege – to me – stands above all the others that might be named. That one is the power to cast a vote, and by that vote to help shape the future in which we will live, in which our children will live, and in which new Americans will be made welcome.

The next quadrennial presidential election season approaches. Already two would be nominees have announced their pursuit of the Republican nomination. As the race comes into full swing, the clamor and din, the clashing of issues and personalities, will not fade, but rise to its expected Kabuki crescendo. Strong opinions sharply stated will, at least for a time, offer voters, seasoned ones and virginal voters, seemingly irreconcilable conflicts among candidates and parties.

Now is as good a time as any to place firmly in our minds the sage and humble supplication of Abraham Lincoln, offered in his First Inaugural Address. Recall that Lincoln’s election, for those that feared an indomitable federal government would overwhelm that natural right framed in the Declaration, to throw off a government repressive of liberty, was a clarion. Such was the reaction that Lincoln, essentially, snuck into the Nation’s Capitol. While he avoided an assassin’s bullet that day, the danger of violent dissent never dissipated. Still, in speaking to the yet united States, he appealed to calm, to reason, to Christian sentiment, in voice no less needed now as then:

My countrymen, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it. Such of you as are now dissatisfied still have the old Constitution unimpaired, and, on the sensitive point, the laws of your own framing under it; while the new Administration will have no immediate power, if it would, to change either. If it were admitted that you who are dissatisfied hold the right side in the dispute, there still is no single good reason for precipitate action. Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty.

In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to "preserve, protect, and defend it."

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

As the election approaches, I suspect some will find offense in my commentaries about various candidates and various issues. I hope you will find in me this same aspiration and invitation as offered by Lincoln:  “We must not be enemies. Though passion may have strained it must not break our bonds of affection.”

Obama and the Congress: No Clash and No Titans

Our Nation's history has been marked by a progress of fits and starts related to the structure, function, and division of powers of, our federal government.

For instance, the division of powers between State and federal government quickly became an issue when Maryland attempted to impose a state tax on a bank created by the federal government.  When that dispute came before the Supreme Court, that Court concluded that, under our Constitutional scheme, the States lacked the power to tax the federal government's bank.  

In another instance, Congress had crafted a compromise between the disputing Free and Slave States of the Union that averted dissolution of the Union for a period of time and prevented immediate bloodshed.  But when the issue of the power of Free States to make perpetually free from slavery any slave that passed through their borders came to the Supreme Court, the Supreme Court fractured the political solution devised by Congress and concluded that a slave freed in Illinois did not remain free when in Missouri, the slave state next door.

Sometimes, it seems, unsolvable conflicts arise between branches.  The Nation can even be in the throes of National calamity when these conflicts arise.

For example, when Franklin Delano Roosevelt took office after the Crash of 1929, he used the occasion of national calamity and fear and uncertainty to push a progressive agenda of centralized government and entitlement spending.  Many, including Justices of the Supreme Court, found those programs to be without constitutional authorization.

When disputes over those programs came before the Court, the Justices who rejected the notion that the Constitution allowed them issued decisions striking down the programs.  In response, FDR became incensed at the roadblock the Court was becoming to his agenda.  He began to discuss publicly the idea of increasing the number of seats on the Supreme Court.  By doing so, he reasoned, he could appoint a sufficient number of Justices to reconstitute a new majority, one that would sustain the constitutionality of the programs he advanced.  When it seemed such a turn of events might actually occur, the Court made a sea change of direction, giving place to FDR's agenda.  The talk of packing the Court soon faded.

So, today, we face yet another instance in which, by rights, a direct conflict should exist between two of the three branches of the federal government.  This dispute, by the way, will never be resolved by the Supreme Court.  It is one that will be resolved only when either the Congress blinks, or the President does.

You see, President Obama stakes out a position in the dispute over how to respond to the alleged use of chemical weapons in Syria by Syria.  His position is that, as President, he does not need authorization from Congress to act.  Obama is not the first president to have taken that view of the Constitution and its delegation of powers between the branches of the federal government.

This goes to a couple of keenly important questions about the nature of our National government.
It is possible that the President, the Congress and the Supreme Court all have the power to declare war on other nations, and to carry out and direct military action in the name of the United States.  The only way it is possible is either (a) the Constitution says so or (b) it does not matter what the Constitution says.  As it turns out, the Constitution does say something about the power to declare war and to command the military forces of the United States.  And, as it turns out, it may not matter what the Constitution says.

Article I of the Constitution creates the Congress of the United States, gives to the Congress all the legislative powers of the federal government, sets out the rules for its election and operation, and describes with particular detail the specifics of its authority (as well as specific limitations on its authority).  Among the provisions of the Constitution regarding the powers of Congress, there are these:

"The Congress shall have the power ... 

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;  

To provide and maintain a navy; 

To make rules for the government and regulation of the land and naval forces; 

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; 

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress...." 

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States...."

Article II of the Constitution creates the Presidency, gives to the President all the executive powers of the federal government, sets the rules for the election and succession of the President, and describes with particular detail the specifics of the President's authority.

There is no like provision -- that is, one touching on the power to declare war or command military forces -- within Article III of the Constitution.

So, it turns out, the Constitution does have something to say about how the United States makes war.  It turns out, as well, that what the Constitution does not say is that each of the three branches of the federal government, alike, is empowered to declare war.  Nor does it leave doubt about whether the President has the power to declare war.

Only the Congress of the United States BY THE CONSTITUTION'S EXPRESS TERMS has the power to declare war, to raise and support armies and navies and to make rules for their conduct.

The President has a defined but important, limited role in this constitutional scheme:  as Article II states, "The President shall be commander in chief of the Army and Navy of the United States.  And only the President is authorized to act as such.

Now what end is effected by these provisions of the Constitution?  The answer may be more important that the simpler question of whether we should bomb Syria.  The end effected by the Constitution is that the power resides in the Peoples' representatives -- the Congress -- to declare that the United States is at war with another country, and to authorize the undertaking of military hostilities.  No doubt exists in the constitutional language.  That this is so is not debatable.

Presidents (Obama is not the first to take the view set out in the article linked above) find this notion -- that military action can only be authorized by the Congress -- to be too limiting on the power of the President as Commander in Chief.  So, in the case of the Korean and Vietnam conflicts, Presidents Truman, Kennedy and Johnson each directed military action be taken without any declaration of war from Congress.  Congress, in the early '70s, in response to these military adventures, passed over a veto by President Nixon, the War Powers Resolution, which by its terms limits where and how the President may undertake military action.  The Resolution requires consultation with Congress before such action, reporting of such actions to Congress within a limited period after they are taken, and cessation of action unless authorized subsequent to notice to Congress.

So now, with the "red line" drawn by the President having seemingly been crossed by the Assad regime in Syria, we come to the terrible moment when American military forces are called to inflict military action on that regime.  The question, though, is whether President Obama has the requisite authority to commit military action.

Above, as the article indicates, he claims that authority.  He, as Presidents before him, thinks assertion of that power is essential to maintaining the authority of the Presidency.  So the question of whether he has that authority seems resolved to him.  But is the question resolved in the view of the Congress?  Well, if the War Powers Resolution indicates the view of the Congress on the power of the President to commit the United States to military adventures and hostilities, then the question is resolved, but it is resolved against the President's view of the matter.  Nor is the War Powers Resolution the only evidence of a different view held by the Congress.

Consider Senator Obama's view, expressed in an interview with the Boston Globe during his campaign for the Democratic Presidential nomination:

"The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

No wonder Joe Biden became Obama's eventual running mate.  They shared the same deep conclusion on this question.  Then candidate Biden was questioned by Chris Matthews about his view on the power of the President.  Here's the exchange:

"Chris Matthews: You said that if the United States had launched at attack on Iran without Congressional approval, that would've been an impeachable offense. Do you want to review that comment you made? 

Joe Biden: Absolutely. I want to stand by that comment I made. The reason I made the comment was as a warning. I don't say those things lightly, Chris. you've known me for a long time. I was Chairman of the Judiciary Committee for 17 years. I teach separation of powers in Constitutional law. This is something I know. So I brought a group of Constitutional scholars together to write a piece that I'm going to deliver to the whole United States Senate pointing out that the president HAS NO CONSTITUTIONAL AUTHORITY to take this country to war against a country of 70 million people unless we're attacked or unless there is proof that we are about to be attacked. And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him. The reason for my doing that -- and I don't say it lightly, I don't say it lightly."

Of course, it is possible that Obama and Biden, as candidates, were immature in their reflection on the necessary scope of presidential authority.  Now, laden with responsibility for the security of the Nation, perhaps, their understanding has matured.  Even so, a mature reflection does not substitute for the language and meaning of the Constitution.  Unless the Constitution does not matter.

It appears that we may learn in the next few weeks just how little the Constitution matters to this administration.