A Few Thoughts on the Constitution

Unfortunately, the DC Circuit slapped down a challenge to the surviving and strict antigun rules of Washginton DC post-Heller to allow various restrictions on firearms, while allowing a narrow right to own a handgun.  Of course, in other areas of law, we would not expect a constitutional right to be treated this way.  A law allowing newspapers, but not magazines, would not pass muster under the First Amendment.  Likewise, allowing people to vote, provided they do so in the most inconvenient times and places and with various prohibitive fees, was struck down in a series of decisions in the 1960s.  Thankfully, there are relatively few anti-gun jurisdictions these days:  Chicago, Wisconsin, California, and some of the Northeast are pretty much it.  “Shall Issue” concelaed carry is now extant in approximately 40 states.   It would be unwise to appeal this decision to the Supreme Court until there is a bona fide circuit split.  For now, residents of the Imperial Capital must make due with Draconian registration requirements.

Incidentally, there is a lot of talk on the right that the individual mandates of the Health Care Law are unconstitutional.  As a matter of first principles, arguably this law and 90% of other things the federal government does is unconstitutional because they do not flow from an enumerated power.  Of course, there is a lot of water under the bridge, and the idea that the law’s individual mandate is intrinsicly unconstitutional and will be found so by the courts is somewhat fanciful. 

For starters, the mandate proceeds through a penalty tax:  get insurance or pay a higher tax.  The tax power is very broad; it was the basis of federal regulation of narcotics upheld in the 1919 Doremus decision, and it is the basis of a great many regulatory schemes, including the original 1934 National Firearms Act (which taxed but did not outright prohibit machine guns).  Most critics seem unacquainted with this body of jurisprudence.

Second, direct federal regulations such as OSHA, EPA, Clean Air Act, etc. control individual conduct all the time, such as in the requirement that cars have catalytics converters.   To undo the individual mandate would likely endanger all of this.  Perhaps that’s a good thing, but it seems a step that no court would take. 

Finally, at the very earliest stages of the American Republic–and coming full circle from Heller discussed above–Congress mandated under the Militia Act of 1792 that individuals own a musket, 20 rounds of ammunition, and other accoutrements to be prepared for military service.  And this mandate covered nearly the entire male population of the country.  This seems a very useful precedent for the health care defenders, but I’ve seen little reference to it in the papers and on the blogs.

There might be some basis on constitutional grounds to argue that conscripting states to implement the program dragoons their employees unconstitutionally into doing the bidding of the federal government (i.e., the holding arising from the Brady Bill in Printz v. United States (1997)), and there is also a growing (but largely irrelevant) body of law that certain non-commercial activities cannot be regulated under interstate commerce. That said, it’s highly unlikely a court challenge will undo this monstrosity, and, since the law is so unpopular, a court challenge is probably not the best way to proceed in order to cement the legitimacy of any such undoing.   It would be far better for the country, far more salutary to our character as a people, to reject this soundly and with much fanfare through the legislative branch.

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Obama’s Un-American Concept of the Presidency

Jay Cost in a very thoughtful column notes that the President’s rhetoric, the tone of his supporters, and his exaggerated sense of his own importance are contrary to the republican traditions of America. Here is an excerpt criticizing the President’s mea culpa for all previous American history at the United Nations:

[I]t’s fair to criticize the actions of the previous administration to a point, but speeches like his U.N. address often move beyond that to suggest a broader failure, one that implicates the mass public. For instance, the best rejoinder he has to those who question the “character” of his country is: “look at the concrete actions we have taken in just nine months,” which he suggests are “just a beginning.” This rhetoric does not befit the leader of a democratic republic, especially one as great as the United States of America. The President should be willing and able to defend the “character” of his country beyond his own, inconsequential-to-date actions.

This jaundiced vision is Obama’s biggest problem, and it is the root of his increasing disconnect from moderates and independents.   It separates him even from someone like Jimmy Carter.  Jimmy Carter undoubtedly was troubled by the cruel racism of the South in which he grew up.  It grated against his sense of justice.  But it’s quite different to be a member of the leadership class taking a magnaminous stand for inclusion than it is to be a member of the erstwhile oppressed class triumphally criticizing the country’s entire past history.  The former is an act of bigness; the latter a dangerous indulgence in moral exquisteness that knows no natural limits.

Obama ran as the biracial healer of America’s still unhealed racial wounds.  But in reality, for most of his life he only identified with one half of these groups, and that group, especially since the 1960s , has defined itself in terms of its righteous victimhood and alienation from the majority.  This was not always true.  Guys like Bill “Bojangles” Robinson, Sammy Davis, Jr., and Booker T. Washington did not talk or think this way.  They loved America and wanted to be fully part of it.  In their eyes it was mostly good, but it had some problems.  This is not true, however, of the Kanye Wests, Reverend Wrights, and Al Sharptons of the world, and nor is it for Obama.

For Obama, America has been mostly bad until now, and only acquired an ounce of moral legitimacy by rejecting that past, which includes his election.  But in his eyes sustaining that legitimacy depends upon the majority’s continuied obeisance to him.  Dangerous.

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Sotomayor Hearings

I have to give the Republicans in the Senate some props for challenging Sotomayor in a very forthright way in the hearings and stating what I think is a Republican position that has cross-party appeal: the values of judicial neutrality, opposition to the fashionable ethnic chauvinism among minorities, and an appeal to high standards and the importance of a judicial officer’s oath.

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Anonymous Political Campaign Spending

I’ve almost always been opposed to any limits on campaign spending, campaign contributions, or spending by single-issue advocacy groups, nor am I fond of most of the other power-preservation techniques the media-coastal elite promote as “campaign finance reform.”  That said, having lived in Illinois, I do know that it matters if the few guys that contribute to the campaign of a senator or governor miraculously also get all kinds of government contracts, sinecure power-sharing jobs, and the like.  In other words, some disclosure of spending to politicians may be warranted to detect corruption associated certain kinds of lobbying.

I would make distinctions between spending tied to personal financial gain and those tied to the concerns of the broader community.  Surely, political action and spending activity is on a bit of a continuum.  On one extreme, are purely ideological groups like the NRA and the ACLU.  On the other are the Aluminum Manufacturers Association or the National Association of Home Builders.   Perhaps a third group would be groups like AIPAC or the Serbian Unity Congress that have formal and informal ties with foreign powers.   More middling groups would be organizations like the AMA or the AARP.  The latter seek goods for their members, but those members are sufficiently disbursed among the community to have at least some arguable claim on the public interest.

One problem with reporting political donations is that groups fighting for purely ideological goods are lumped in with groups engaged in naked rent-seeking.  In California, this reporting requirement has led to particularly ugly outcomes, as otherwise anonymous opponents of gay marriage have been harassed, boycotted, and unable quietly to support a cause they believe in.  A website has even popped up to show anyone and everyone the opponents’ home addresses.

Those who contribute to political causes are a distinct minority in society.  They exercise disproportionate power.  It’s appropriate that corruption be detected and avoided, and thus ordinary political donations above a certain amount probably should be reported, but beyond this requirement most of the the campaign finance rules are noxious, tending to empower incumbents and the mainstream media above organized pluralities of decentralized citizens.  Even distinguishing one lobbying from another carries with it certain risks, as groups on the margins like AIPAC or the AARP are clearly in the middle of the spectrum of rent-seeking and purely ideological political activity, and any set of rules should probably err on the side of nondisclosure.

In no sensible world, however, should Americans be required to condition their First Amendment right to anonymous speech, including the “speech” of supporting political causes, on the risks of harassment by violent opponents, such as certain cadres of gay marriage supporters in the counter-cultural cesspool that is California.  Far from ending corruption, this leads to a new kind of corruption, the corruption of private violence against those with popular or at least defensible views from organized and recalcitrant factions.

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Is Ron Paul Nuts?

I don’t think Ron Paul is nuts, but all too many of his supporters are, and he does little to rein in their juvenile conspiracy thinking. Their diatribes make last decade’s Waco and Randy Weaver legends appear sane in comparison. Now, when we think of those who stick to reasoned arguments and avoid guilt-by-association and ad hominem arguments, one name that usually does not come to mind is that of Andrew Sullivan. He’s famous for castigating his opponents as hate-mongers and “Christianists.” He has a rabid hatred for Bush based largely, it appears, on Bush’s opposition to gay marriage. So lately he’s enamored of Ron Paul, whose rhetoric appeals to the Constitution-lover in all of us. Yet Paul can’t win. He is too dismissive of the threat of terrorism. He can’t think of a principled reason to oppose mass immigration. His willingness to embrace states’ rights would soon alienate many of his supporters, not least folks like Sullivan who don’t want states to ban gay marriage (or permit segregated schools), both of which would be allowed in Ron Paul’s universe.

Sullivan seems to have forgotten what is normally important to him; he notes that among Bush’s people “you will hear Paul described as ‘nutty’ and anti-Semitic and fringe and marginal and on and on . . .” Well, isn’t this funny, considering how often Sullivan employs this line of argument against anyone that disagrees with his thoroughly radical view of family life, or his defense of pederasts, or his hatred of Evangelicals (and the leadership of the Catholic Church), or the like.

You see, for most people, including Sullivan, liberalism is simply obvious; it’s in the air that they breathe. Its premises, its controversies, and its narrow range of thinking are beyond question. Those who deviate are utterly baffling to liberals, who presume their traditionalist critics are malevolent.  Incidentally, Ron Paul does not deviate from this orthodoxy; he’s just an old-line classical liberal who accepts the fundamental liberal view that society has no particular purposes other than the facilitation of individual desires. To think outside of liberal individualism, to acknowledge some prudential limit on a libertarian or liberal viewpoint, to suggest that something is owed to society or the past or the state is anathema. Because rationalistic liberalism, of which libertarianism is just an off-shoot, by its nature does not have any internal limiting principles. Society must be organized according to its rationalist and materialist lines or, according to its logic, the absolute demands of “human rights” are being violated. This is not the politics of balance and prudence and compromise, but the total politics of ideology. With such totalism comes the ritual denunciations of others as Christianists, haters, war-mongerers etc.

Ron Paul only appeals to Sullivan because he’s a gadfly who shares Sullivan’s (au courant) view that the Iraq War is a mistake. As with Bush, whose “compassionate conservatism” once appealed to Sullivan’s gobbeldy-gook moderate views, Sullivan’s romantic sentiments will soon be dashed by some expression of a genuinely conservative viewpoint by Paul, such as his opposition to civil rights laws. At that point, expect Sullivan to return to his tried-and-true modus operandi: hysterical denunciation of yet another heart-breaking politician who has the temerity not to agree with him on everything.

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Water Boarding, Torture, and Guerrilla Theater

Water boarding is perhaps the mildest torture there is in terms of safety, permanent damage, and the like.  It’s also one of the most effective.  Whether it’s ever justified, volunteering to have it performed on oneself is likely not the best way to demonstrate its horrors.  Yet, for some reason, this kind of “guerrilla theater” is back in fashion.

Consider this:  no one volunteers for the Guillotine or the Rack; no one volunteers to be burned with a blow torch or subject to the application of needle-nosed pliers.  Water boarding is effective because it produces terror; it does so because it somehow triggers a deep, primeval fear of drowning.  I’m not convinced this technique is useful, necessary, or worth the public relations damage it causes.  I believe torture should not be part of our laws or authorized bag of tricks for the military or the CIA.  It may be pardonable at best, but it is degrading to our national honor to embrace this dreadful business whole-heartedly in our laws.  Even so, there are worse symbols of torture than water-boarding.    It’s a clean technique, almost clinical.  It does not occasion horror in the observer, not least when one is watching this “torture” accepted voluntarily by a hippie protester.

The Bush administration has, for better or worse, followed the counsel of legally-minded types–including Alan Dershowitz–that interrogation techniques should be regulated, disallowing any real discretion among those doing the dirty work.  Water-boarding is the symbol of the handful of “enhanced interrogation techniques” employed by the Bush administration because harsh physical tortures seem largely absent from the CIA and military’s well-regulated repertoire.  Torture opponents increasingly discredit themselves as the boys-who-cried-wolf, having spent inordinate energy on the ultra vires psychological humiliations inflicted at Abu Ghraib, while ignoring the more disturbing and disorderly killings of civilians in places like Hamdania and Haditha.  (Of course, critics completely ignore the various horrors inflicted by al Qaeda, such as the torture and murder of Nick Berg, Daniel Pearl, and countless Iraqi civilians.)  Worse, by not acknowledging the loss of life that might arise from an exquisite concern for human rights among captured members of al Qaeda, torture opponents avoid having a mature debate with their opponents.

In the scheme of morality, the duties owed to captured terrorists are some of the least compelling and the most debatable.  We’re not talking about the mistreatment of uniformed conscripts doing their duty for their country.  We’re talking about people who can and should be executed under the law of war for their actions, their techniques, and their fundamentally criminal purposes.  Perhaps they shouldn’t be tortured, but the acknowledgment of this moral duty among a normal, patriotic American should be a grudging one.  Because it is perfectly healthy and natural as an emotional matter to want to torture a member of al Qaeda and show him no quarter.

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Originalism and the Second Amendment

Conservatives (and liberals) frequently accuse their respective opponents of being dishonest, results-oriented, unprincipled, and craven.  It is worth noting that not all liberals and leftists are unprincipled, just as not all conservatives are principled.  Professor Jonathan Turley today acknowledges in the USA Today that the Second Amendment protects an individual right to bear arms.  This is obviously difficult for people from a certain social milieu to accept, and thus it is a testament to Turley’s character to author this piece:

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

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The Price of Process

Ace reports an extraordinary story that I’d like to hear the disciples of judicial process and civil liberties for terrorists in the Democratic Party respond to:

Last May, Iraqi terrorists kidnapped three American soldiers.

American intelligence officials searched for cyber-signals about the kidnapping… and actually found them. They found the kidnappers talking to each other on-line.

However, they had to stop listening because the signals were passing through an American-based server and under the law that meant there could be no eavesdropping without a warrant.

So they stopped listening in on foreign terrorists holding kidnapped American soldiers.

For ten hours, officials worked to get “emergency authorization” to resume eavesdropping.

His post, and the evidence in support, is worth reading in full. In an earlier post entitled Wishful Thinking and Terrorism and another here, I’ve discussed some of the issues surrounding this issue.  In short, my view is that combating terrorists located overseas during a time of war, when combined with emerging communications technologies, demands flexibility and less judicial process than the fight against peacetime, domestic criminality. It would be nice if the Democratic Party would grow up and quit acting like this war to protect America from terrorism (and also the exigencies of protecting our troops fighting it overseas) can be carried on effectively without some flexibility in the executive branch and its agencies. Process is not free. We accept this domestically because we, American citizens, might be caught in the law enforcement net. But for terrorists communicating overseas with one another or their agents in America, there are few valuable interests at stake. If any American is talking to Khalid Sheik Mohammad, I want someone in the CIA listening as a matter of course.

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Another View of Habeas

We’re told the habeas protection being denied the foreign enemy combatants being held in Guantanamo is a major national scandal that puts too much power in the hands of the executive. I disagree, not least because Constitutional protections have never previously been extended to enemy prisoners captured abroad in a time of war. Their treatment has traditionally been the exclusive province of the President, an incident to his powers as commander in chief and the chief of military policy. Also, the interpretation and application of treaty obligations was left to his discretion.

But the major premise of critics that more judicial process generally favors liberty also seems to be accepted uncritically by defenders of the executive. This view of process does not take into account that too little government can be just as dangerous to liberty as too much, because disorder and a lethargic government unleash forces that are controlled even by the most powerful rulers. This is apparent when we view areas of the world where lawless, nonstate actors undermine the government’s protection of vulnerable citizens.

An overly legalistic application of habeas engendered greater oppression in the Deep South in the 1870s, as relayed in Eric Foner’s A Short History of Reconstruction:

[A] government willing to suspend normal legal processes and employ armed force could mount an effective response to the Klan. But as many a modern government has discovered, the suspension of constitutional rights carries its own risks, especially the possibility of transforming perpetrators of violence from criminal into victims in the eyes of citizens who sympathize with their motives if not their methods. Nowhere was this dilemma more apparent than in North Carolina, where Gov. William W. Holden’s use of the militia provoked a reaction that brought down his administration. In 1870, the government dispatched white militia units raised in the western North Carolina mountains to Caswell and Alamance counties, under the command of former Union Army officer George W. Kirk. About 100 men were arrested, and although the state constitution did not authorize the governor to declare martial law, Holden suspended the Klan-controlled local courts, ordered the prisoners tried before a military commission, and refused to honor a writ of habeas corpus issued by the state’s chief justice. Ironically, Democrats then appealed to the federal courts under the Habeas Corpus Act of 1867, originally enacted to protect blacks and white Unionists. Holden was forced to release the captives, and the campaign against the Klan collapsed.

I guess, as today in our war against al Qaeda, if reconstruction-minded governors resorted to swift and extra-legal methods against the Klan, we’d be no better than the Klan and the terrorist regime they aimed to establish. It’s better, I suppose, that the Klansmen were released under the banner of habeas corpus, even though their release meant they could continue to conduct a military-style campaign of terror against blacks, unionists, and so-called carpetbaggers.

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