Tag Archives: US Constitution

Repeating myself, but . . .

Interesting that President Barry made this exact point yesterday. I guess he’s reading my Facebook feed cuz I said this on Monday in a comment thread – and in a post here. And I wish he’d said it sooner.

Obamacare is the law, as passed by the Congress, signed by the President, upheld by the US Supreme Court, and reaffirmed by the American people when they re-elected that President. That’s the way the US gov’t is designed to work. Half of those who tell pollsters they disapprove do so because it doesn’t go far enough – they wanted a single payer plan. The demand to defund or delay Obamacare comes from a single branch (and only a small minority of that branch) trying to undo – by holding hostage – a law created in the way designed by the Constitution.

 

While the House burns like Atlanta . . .

UPDATED BELOW: From Forbes magazine this morning:

But a new survey of 1,976 registered voters finds that only 33 percent believe that the health law should be repealed, delayed, or defunded. 29 percent believe that “Congress should make changes to improve the law,” 26 percent believe that “Congress should let the law take effect” and see what happens, and 12 percent believe that the law should be expanded. The bottom line? Voters are skeptical that Obamacare will live up to Democrats’ hype. But they also believe that it should be given a chance to succeed.

Universal health care (which Obamacare is most assuredly not – at least not yet) has been a political objective, indeed a platform goal, of the Democratic Party  since Truman (Teddy Roosevelt and Nixon liked it too). So it has been a stated goal of at least half this nation for decades. It is now the law, as passed by the Congress, signed by the President, upheld by the US Supreme Court, and reaffirmed by the American people when they re-elected the President who sponsored it. That’s exactly the way our Federal government was designed to work.

The House GOP is not pursuing the will of the American people, they are pursuing a Party objective. They forget that they are only one of three branches of government (and only half of that branch!). 

Our Founders knew well to build in protections against a tyranny of the minority. UPDATE: commenter Alan Scott points out – correctly – that I am wrong here. Our Founders built in protections against a Tyranny of MAJORITY. My bad.

The minority half of one branch of our government is on the wrong side of this.

Krathhammer analyzes DOMA decision. Gets it absolutely right.

When he is bad, he is very very bad, but when he is good, he is very very good. Here in his Washington Post column Charles Krauthammer (also senior serious intellectual, FOX News) looks at SCOTUS’ DOMA decision and explains quite well what it means.

He’s not particularly judgmental about either the issue or about the Court’s action. He breaks the decision down to its essentials and says – as I believe – that Federal recognition is now inevitable. Because, as he noted, the Court used the rationale of ‘equal protection under the law’. By saying so in the decision, he says, they pretty much guarantee that full recognition is on the docket next session and it will happen.

. . . if the argument is equal protection, one question is left hanging. Why should equal protection apply only in states that recognize gay marriage? Why doesn’t it apply equally — indeed, even perhaps more forcefully — to gays who want to marry in states that refuse to marry them?

If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?

Krauthammer finds none. He notes the broad smile on the face of David Boise who argued for the Prop 8 ruling and says:

He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.

Yup. I think Boise and Charles have it exactly right. This week’s half measure is temporary. The fat lady hasn’t quite finished singing yet.

 

Guns, damn guns and things I didn’t know: Part the gajillionth

During the American Revolution, local militias –  who played the role of today’s  National Guard – had no collective arms and depended entirely upon the arms and ammunition of private citizens. (Okay, I knew that part.)

american-colonial-militia-rifleman-randy-steeleTo facilitate response time (the British are coming! the British are coming!), they often stockpiled their arms in one place for easy access. Basically, an armory.

Before the Revolution and in its very early days, the British – the ‘central government’ of that day – took to seizing those arms, something the good folks  took personally – those guns were private property after all. (Might that be the origin of our love affair with personal weapons – well, public weapons as well, since we are the largest arms exporter in the world.)

There are several references to militias in The Constitution (which I did not know; I thought it was only addressed in the Second Amendment). Article I assigns Congress the power to:

. . . provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]

To provide for organizing, arming and disciplining, the Militia, and for governing of such Part of them as may be employed in the Service of the United States.

(I’m getting this from Jeffrey Toobin’s terrific 2012 book about Obama and the Roberts Court by the way.)

Toobin goes on:

Article II says the president is C in C of the army, navy and “Militia of the Several States when called into the actual Service of the United States”. It wasn’t until the Militia Act of 1903 that their functions were formally subsumed into other agencies, like the National Guard . . .

And this: in the first 200 years of our existence, the Supreme Court discussed the Second Amendment exactly once, in 1938. It – U.S. v. Miller – was a challenge to the National Firearms Act passed in 1934 in response to the gang violence of the day and in particular to the St. Valentine’s Day massacre, which horrified the country not least because ‘machine guns’ were used. The Court ruled – unanimously – that the Act complied fully with the Second Amendment. Justice McReynolds spoke for the Court, saying they’d concluded that the Second Amendment existed to preserve the rights of militias – not individuals – to keep and bear arms.

And the issue disappeared once again, resurfacing only after the Kennedy assassinations.

massacreThe Gun Control Act of 1968 had widespread public support including the strong support of the NRA (when they still represented actual gun owners). 

IRONY ALERT: That didn’t change until Ronald Reagan’s 1976 campaign for the presidency. Writing an article for Guns and Ammo in 1975, he set off an entirely different conversation about guns, working opposition into a libertarian message, even insisting that the Second Amendment prohibited gun control – so much so that the 1976 Republican platform proclaimed a new-found opposition to gun control, reversing its previous 1972 platform supporting gun control. And in 1977, hard-liners staged a coup d’etat at the NRA to align with the new position). Everything changed.

But back to 1939. Toobin calls the U.S. v. Miller decision:

entirely originalist in its reasoning. The opinion quoted the provisions of Article I  dealing with the powers and then stated “With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

Toobin continues:

Indeed, if the Second Amendment were intended by its framers to give individuals a right to keep and bear arms, the initial militia clause [“A well-regulated Militia  being necessary”, etc.] would be both unnecessary and meaningless.”

I find the reasoning of both that 1939 Court and of Jeffrey Toobin to be impeccable. (And as proof that I care, know that I had to type all this . . . no cut and paste from da books!)

Can we kill our own just because they’re bad guys?

I guess we killed an important terrorist yesterday. Another clean, targeted hit. And we did it without invasion, always a good thing. Gotta tone down that invasion thing.

But there are concerns. AnWar al-Awlaki was a bad guy for sure. He was also an American citizen.

I just stumbled upon Spatial Orientation, a blog new to me and one I’ll visit again, where they’ve posted some commentary on the subject including a statement from Republican presidential candidate Gary Johnson and a post from professional liberal Glenn Greenwald, two fellows who are hardly ideological bedfellows but appear to be equally fond of the Constitution.

Johnson said that while he applauds vigilance in the WoT:

. . . we cannot allow the War on Terror to diminish our steadfast adherence to the notion of due process for American citizens.  The protections under the Constitution for those accused of crimes do not just apply to people we like — they apply to everyone, including a terrorist like al-Awlaki.  It is a question of due process for American citizens.

If we allow our fervor to eliminate terrorist threats to cause us to cut corners with the Constitution and the fundamental rights of American citizens, whether it be invasions of privacy or the killing of someone born on U.S. soil, I could argue that the terrorists will have ultimately won.

Greenwald added:

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar . . . [but] that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S.

Awlaki has been linked to suspects in the 2009 Fort Hood, Texas shooting spree and the attempted Christmas bombing of a passenger jet, but he has neither been charged nor tried. It appears he was targeted because he preached jihad and recruited for Al Qaeda in the Arabian Peninsula. Like I said, a bad guy, but we have rules that say we can’t kill citizens because they don’t like the government.

(The killing was carried out by an unmanned drone,  another conversation we should be having.)

UPDATE: Johnson just appeared on FOX News. That’s an audience who need  a challenge to cherished beliefs. He did a good job.  The video is here.