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Archive for the ‘constitutional rights’ Category

Why the Constitution Matters in Military Affairs                                    

Week after week it’s easy for me to blog with compelling arguments that most things Congress does is unconstitutional.  But, up until about two years ago with the advent of Ron Paul’s Freedom Revolution and last year’s birth of the Tea Partiers, most Americans would have said, so what if something is unconstitutional?  That document is outdated and irrelevant.  These are modern times with issues unimaginable to the Founders.  Nonsense, the eternal truths contained in the U.S. Constitution are as relevant today as they were in the 1700s.

Take making war for instance.  Article 1 Section 8 gives Congress, not the president, the power to declare war.  In that same section, Congress has the power to finance the endeavor.  Since the end of World War II, the clause pertaining to declaring war in the Constitution, like many others, has been almost totally ignored by both the Congress and president.  Additionally, Congress has rarely if ever invoked its power to restrain presidential power by controlling the purse strings of the military during times of war.  The consequences have been horrendous. 

In the 1960s and 1970s it led to an 11 year war in Southeast Asia.  Instead of a declaration of war the military action was justified on the basis of the Gulf of Tonkin Resolution passed in 1964.  The resolution gave President Johnson the authorization to do whatever was necessary in order to assist “any member or protocol state of the Southeast Asia Collective Defense Treaty.”   This vague and open ended wording led to much criticism of the president and his Secretary of Defense over how they conducted the war.  Specifically, President Nixon’s expanding of it to include the bombing of Cambodia made an already unpopular war almost an event that tore the country in two.  It also led to over 50,000 American and countless Southeast Asian lives being lost.  The conflict ended in defeat for the U.S. and spending for the war caused high inflation which hurt American households, facilitated our manufacturing base to move overseas, and eventually brought on problems like the Savings and Loan crisis.

In current times we find ourselves mired in two conflicts in Afghanistan and Iraq.  To be sure, Congress did not declare war in either circumstance.  For Afghanistan, it passed a resolution authorizing the president to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11th attacks, or who harbored said persons or groups.  For Iraq, the resolution authorized the president to use the Armed Forces of the United States “as he determines to be necessary and appropriate” in order to “defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq.”

It seems like Washington never learns from its mistakes.  Again, loosely worded resolutions instead of firm declarations with a narrow objective allowed President Bush to abuse his powers by spying on Americans, holding prisoners at Guantanamo Bay indefinitely, and expand the bombing to include other countries other than Afghanistan and Iraq, namely Pakistan.  In addition to over 1 million Iraqi and Afghani deaths from the main theaters of war, 1 in 3 people killed in the expanded bombings of Pakistan have been civilians. 

Because Washington has not followed the eternal truth that war should be entered into and conducted carefully, our government is primarily responsible for the destabilization of the Middle East.   It doesn’t take a rocket scientist to understand that because of the threats of invasion that came from the previous administration and with American military might all around it Iran is attempting to acquire nuclear weapons.  Even though Saddam was a vile and ruthless tyrant his Iraq acted as a counterweight to Iran.  Today, Iraq is in chaos and if U.S. forces do ever leave it will be ripe for a takeover by Islamic extremists.

A Republican Congress unfortunately did not deny George W. Bush the ability to launch an unjust war on Iraq based on lies, misinformation and his desire to avenge Saddam Hussein for allegedly sending a hit squad to assassinate his father.  One man made the decision to start the war in which Americans would die and hundreds of billions of dollars would be spent.  This was not the intent of the Founders who were wise enough to give the powers of declaring wars and financing them to the Congress.  The Founders gave them to Congress because it is a deliberative body that represents the many viewpoints of Americans.  These viewpoints, like in the enactment of laws, place a check and balance on the solitary power of the president.  Congress has abdicated this constitutional power and consequently has propped up an imperial presidency – something the Founders, other than Hamilton and Adams, would have vehemently rebelled against.

In 2006 the Democrats took back control of Congress with a pledge to end the wars in Afghanistan and Iraq.  For a time there was hope that they would restore the constitutional balance of power in war making. They simply could have done this by cutting funding for the wars.  But instead, Congress continues to finance the wars and in fact has gone along with President Obama’s wishes to continue funding bombings in Pakistan and to escalate the war in Afghanistan – so much for the hope that Congress would exert control over the powers granted to it and rein in the powers usurped by the president.

Wars are costly both in terms of human life and monetary expense.  Unless an attack on U.S. soil is imminent, Congress must retain its constitutional power to declare war and use its authority over funding it to limit the president’s actions.  By not following these constitutional mandates we have become a militaristic society almost constantly at war in adventures far beyond what the Founders envisioned.  This has caused a drain on our families, our finances, and our country’s reputation in the world.  Fortunately, many Americans are finally waking up to this reality.      

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.

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Obamacare is Unconstitutional – Part 2

So, let’s see, towards the end of last year both houses of Congress passed a form of health care reform despite close to sixty percent of Americans being opposed to both bills.  A few weeks later, the usually liberal voters of Massachusetts in a true sign that the polls were not lying about America’s opposition to Obamacare, essentially replaced the late Godfather of the Socialized Medicine Movement in America Ted Kennedy with a candidate that vowed to defeat the president’s far-left scheme for health care.  Scott Brown’s victory took away the Democrats’ 60th seat in the Senate thus rendering them impotent in overcoming a Republican filibuster that would certainly have been employed to derail Pelosi, Reid, and Obama’s dream of European style health care in the U.S.  There was utter panic in Washington.  Schemes were devised to thwart the will of the people and those evil Republican fat-cats.  We heard talk of deem and scheme and reconciliation being used to circumvent the Constitutional mandate of an up or down vote.  Eventually, Nancy Pelosi devised a way for the House to approve the Senate bill with amendments that the Senate could vote on through reconciliation sparing them the need for 60 votes to end debate.

It seemed the Democrats were able to do the impossible – pass an unpopular bill that has eluded them for close to 100 years without any Republican support and 22 Democratic defectors.  And they did it without even violating the Constitution.  Ah, but not so fast.  Article 1 Section 7 of the Constitution reads, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”  The Senate bill which has revenue raising provisions in it, namely a new Medicare payroll tax, an excise tax on “Cadillac insurance plans, and a tanning tax, did not originate in the House as the Constitution requires.  Thus, Obamacare is unconstitutional.  Those compassionate politicians really ought to read the fine print before they do us anymore favors.

Now, I am not naïve enough to believe that any court would invalidate the new health care legislation based on the above Constitutional violation.  That is where we find ourselves in 21st Century America – with a federal government that would rather pull a fast one than live by the rule of law.  As I have argued earlier and will argue again here the whole piece of legislation that has come to be called Obamacare is unconstitutional on many levels.  Under Article 1 Section 8 health care or anything close is not one of the enumerated powers of Congress.   Anything that is not an enumerated power of Congress is left to the states under the 10th Amendment.

Of course, liberal interpreters of the Constitution always ignore what they don’t like and cite those clauses that they say gives Congress the ability to do whatever.  For the sake of not being redundant, we will move on from our discussion of the “general welfare” and “necessary and proper” clauses that we had last week and instead focus on a another clause big government types like to misinterpret – the interstate commerce clause.

This clause also found in Article 1 Section 8 simply says, the Congress shall have power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…” It was included in the Constitution in reaction to the failure of the Articles of Confederation in preventing states from erecting protectionist trade barriers against each other.  Essentially, the clause gave Congress the power to ensure a free trade zone between all the states.  No less than the Father of the Constitution, James Madison confirmed this in an 1829 correspondence with Virginia politician Joseph C. Cabell,

“Yet it is very certain that it grew out of the abuse of the power by the importing       States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”

The interstate commerce clause did not give Congress the power to enact minimum wage laws, worker safety regulations, Social Security, health care legislation, or the thousands of other statues Congress has enacted through the years.  As a matter of fact, Madison also confirmed this in Federalist Paper 45,

“The powers delegated by the proposed Constitution to the federal government are    few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The above text blows a huge hole in the argument of statists that the Constitution is a liberal document that gives wide discretion to Congress to provide for us from cradle to grave.  According to Madison, whose fingerprints are all over the document, no far-reaching powers were ever given to Congress.  In essence, Congress was given jurisdiction over “war, peace, negotiation, and foreign commerce” while the states had jurisdiction over “the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”  Under this definition, health care falls under the domain of the states.  Of course, that is where it has been until Obamacare.

I understand that through the history of this country the Congress has taken great liberties (no pun intended) with regard to passing unconstitutional acts and the Supreme Court has let it.  But, Congress has never required Americans to buy a product or service from a private provider.  The Court must strike this provision of Obamacare down otherwise Congress’ power would become virtually limitless.  Getting away with violating Article 1 Section 7 is bad enough, but if the Court allows Congress to get away with forcing Americans to purchase a product ultimately at the end of a gun barrel, then we are further along the road to a fascist state then I even imagined.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.

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Obamacare is Unconstitutional – Part 1                                                  

For those of you that read my blog on a weekly basis mostly to get your dander up, I will not disappoint you this week.  To get right to the point, plain and simple, the newly passed “Obamacare” health care reform legislation is unconstitutional on many levels and Republicans if they have any political principles at all will run this November on a platform promising to repeal the measure in its entirety. 

However, they may be saved from this act of unusual courage on their part if state attorneys general have their way.  Currently, there are already lawsuits filed by 14 states against the law.   The suits rightly state that, “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.”  This argument before any court should be enough to at least invalidate that portion of the law.  And if that portion is struck down then the financing mechanism for making the law somewhat viable is removed and the scheme falls flat on its face.

The states have chosen the portion of the new law that will give them the greatest chance of success in the courts.  After all, it was deemed necessary at the beginning of the last century to pass an amendment to the Constitution allowing Washington to collect income taxes from Americans.  How come an amendment is not required for Washington to order Americans to pay for health insurance? 

But, there are also many other constitutional arguments that can be leveled against “Obamacare”.  Article 1 Section 8 of the U.S. Constitution enumerates 18 specific powers granted to Congress.  Healthcare is not one of them and as a matter of fact the responsibility for regulating the industry has historically fallen to states.  States license doctors, hospitals, and have insurance commissions responsible for regulating rates and services.  Of course, liberal interpreters of the Constitution will point out that there are two clauses in that same section which support their view that Congress has nearly unlimited powers when it comes to providing for the well-being of Americans.

The first clause is the “General Welfare” clause, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…”  Taken in context, general welfare is not separated by commas from “to pay the debts” and “common defense”.  Therefore, the Congress has the power to provide for the general welfare of the United States by maintaining a common defense and paying the debts in the pursuit thereof.  The phrase does not give Congress unlimited powers.  If it did there would be no need for the 16 enumerated powers that follow in the same section.

The second clause liberal interpreters of the Constitution point to in order for Congress to do whatever it wants to is the “necessary and proper” clause.  It reads, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”  Many have labeled this the elastic clause which is about as accurate a label as the “Patriot Act”.  The first part ending with “foregoing powers” obviously relates to the 17 previously mentioned enumerated powers in Section 8.  The bone of contention is the phrase, “…all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”  What are these other powers?  To liberal interpreters it means anything Congress feels should be done for the ‘general welfare”.  The real answer is the powers specified to Congress outside of Article 1 Section 8 of the Constitution. 

Article 2 dealing with the Executive Branch is a good example.  In Section 1 of that article Congress has been given the power, not enumerated in Article 1 Section 8, to determine the time for choosing electors of the Electoral College.  Article 2 Section 2 gives Congress power to enact laws dealing with certain appointments of the president.  There are several amendments  that give Congress power to, “enforce this article by appropriate legislation”.  These powers of Congress not found in the article dealing with the legislative branch are “necessary and proper for carrying into execution all other powers vested by this Constitution in the government of the United States…”  That was the original meaning of the necessary and proper clause.  Furthermore, health care is not specified in any of these other powers, thus it is outside of Congress’s powers under federalism and a clear violation to the Constitution. 

The Constitution grants very limited powers to all three branches of government, not just Congress.  Those powers are enumerated and delegated in the document.  To believe otherwise ignores the actual text and the historical context the document was written in.  Why would individuals give unlimited power to a new government when they had just risked all they had to overthrow the unlimited tyrannical powers of another?  They wouldn’t.  This is why a strict constructionist interpretation is correct and why Obamacare is unconstitutional.

Part 2 will deal with the interstate commerce clause and why it is important to adhere to the Constitution.    

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.

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Rick Perry has recently spoken out about Texas seceding from the Union. From the New York Times:

“When we came into the Union in 1845, one of the issues was that we would be able to leave if we decided to do that,” he told reporters on Wednesday. “My hope is that America, and Washington in particular, pay attention. We’ve got a great Union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, who knows what may come of that?”

Democrats have already begun making disapproving noises:

State Senator Rodney Ellis, a Houston Democrat, said Mr. Perry had not only opened himself to ridicule but also evoked a time most Texans would rather forget. “Texas has become a hotbed of right-wing political activity,” Mr. Ellis said, “but I think even those folks on the far right think this is over the top.”

And Perry has already begun to backtrack:

After the rallies, Perry downplayed his secession comments, amending them in an interview with the Fort Worth Star-Telegram to say, “I’m trying to make the Obama Administration pay attention to the 10th Amendment.”

So what’s the whole point of this? It’s just another Republican establishment figure going out on a limb to try to grab the Ron Paul constituency before what looks to be a nasty primary fight. Of course, the fact that at least part of the GOP now has to sound like hardcore libertarians on what used to be considered fringe issues can be considered encouraging to the movement.

I don’t know a whole lot about Perry’s record in Texas, so I don’t know if he’s a worthwhile politician and therefore worthy of our support. I would tend to suspect he’s not, just on general principle when dealing with Republicans.

But this, and the broader 10th Amendment movement in general, does represent a sea change in libertarian thought. Back in 2006, the Libertarian Party had a vicious fight between the Radical Caucus and the Reform Caucus. Reform ended up winning, but it seems like a lot of the people in the Radical Caucus ended up reappearing in Ron Paul’s presidential bid in 2008, in the GOP. And now, as an effective component of the Paul wing of the GOP, they are sounding more credible and wield more political power than they could have had by winning the fight for the LP in 2006. Maybe Michael Medved was right.

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Syndicated from my weekly column in the Mountaineer Jeffersonian, a weekly paper publication in Morgantown, West Virginia:

A supreme court ruling from mid-January could impact the legality of thousands of police searches each year. At issue is the admissibility of evidence obtained where the possibility of police misconduct or negligence exists. Called the Exclusionary Rule, which is based largely upon the fifth amendment to the constitution, specifically the verbiage that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law,” and upon the fourth amendment provisions against unreasonable search and seizure. Thus this supreme court case may in fact be quite landmark in that it has watered down these protections for citizens, allowing for greater lee-way for law enforcement agents to act irresponsibly and still enjoy the “fruit of the poisonous tree.”

The case involved an individual by the name of Bennie Herring, whose home was entered based upon a search warrant in a police database. When the police entered his home, they found drugs and a firearm. Unfortunately, no such warrant for Mr. Herring’s arrest should have existed. It had in fact been withdrawn prior to his arrest. The existence of it in the database was purportedly caused by a database malfunction involving the computer systems of a neighboring county’s police department. Mr. Herring, following his unsuccessful appeal to the supreme court, is now serving a 27 month sentence after being found guilty by a jury in Alabama.

Professor Craig Bradley of Indiana University law school was quoted as saying “It may well be that courts will take this as a green light to ignore police negligence all over the place.” Chief Justice Roberts, writing for the majority in a 5-4 ruling, stated that the exclusionary rule was limited to “deliberate, reckless or grossly negligent conduct, or in some circumstances recurring systemic negligence.” Unfortunately, the existence of errors in law enforcement data is commonplace enough that it could easily be qualified as recurring systemic negligence. According to a 2005 report by the Office of the Inspector General’s audit division in the Department of Justice, the nation’s largest database of potential terrorists included noteworthy amounts of incorrect and incomplete data. A 2006 report from the Social Security Administration went on to document database errors in the Numident database, a system operated by the Department of Homeland Security to enable the identification of individuals by social security number for purposes such as employment eligibility verification and drivers licensing. This report estimated that data for 4.1 percent of the total records could contain errors, impacting the employability of and potentially otherwise inconveniencing 17.8 million US citizens.

Chief Justice Roberts went on to state, “the deterrent effect of suppression must be substantial and outweigh any harm to the justice system,” and that “marginal deterrence does not ‘pay its way.’” He was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. On the other side, Justice Ginsberg wrote for the minority that the majority “underestimates the need for a forceful exclusionary rule and the gravity of record keeping violations.” She was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

This ruling follows on the heels of a 1995 verdict in which a similar judgment was issued. The case, Arizona v. Evans, dealt with a similar issue wherein a database maintained by the courts had contained erroneous information which led to prosecution. In Arizona v. Evans, the supreme court ruled that erroneous records kept by court officials was an exception to the exclusionary rule. This month’s ruling now extends that exception to records maintained by police and other law enforcement agencies.

Flying in the face of what seems to clearly be an accurate reading of the constitution, this ruling sets a dangerous precedent. There is a long and well-documented history of police misconduct in this country which includes, at times, a willingness to operate outside of what is ethical and legal to obtain a desired result. This ruling will unfortunately create a new loophole which crooked or desperate law enforcement agents will be able to use to obtain results while disrespecting the constitutional protections of citizens against unreasonable searches. If “database errors” can be systematically created in such a way that enables police to enter onto any premises at any time to search for evidence, regardless of whether any such warrant has ever been in actuality granted by a judge, the potential for abuse is tremendous. Defense attorneys representing those accused under such circumstances will likely have no means of investigating whether such a database error was created erroneously or was in fact simply a malfunction of hardware or software. Furthermore, given this ruling, it will be nearly impossible for any citizen to defend themselves against such unconstitutional intrusions of their property.

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From Liv Films, an editorial about gay marriage, fat marriage, eating lobsters, and more. Mona of Liv Films was the “Ron Paul Girl,” but most of their recent work has been non-political. LMFAO (laughing my fat ass off)….

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Press release posted on the LP Radicals yahoo group. Starchild has had various offices in the San Francisco and California LP, and is one of the spokespeople for this initiative.

The San Francisco Department of Elections announced today that the measure prohibiting city officials from spending money arresting and prosecuting people for prostitution, and mandating equal legal protection for sex workers, has qualified for the November ballot. Of 500 signatures randomly sampled and checked by department personnel, 80 percent were found to be valid. “This is a happy day for San Franciscans who want government to focus on fighting real crimes like homicides and robberies, and are tired of seeing resources wasted in a futile effort to police consensual sex between adults,” said Starchild, a sex worker activist and spokesperson for the campaign. “We’ve cleared the first hurdle.” By the Elections Department’s tally, supporters had turned in 12,745 signatures of registered San Francisco voters on July 7.

The campaign to decriminalize prostitution will hold a kickoff rally and press conference to formally announce the results on Tuesday at 4:00 p.m. in front of the Polk Street entrance of City Hall, with
speakers to likely include Supervisor Jake McGoldrick, who was a signer of the petition to put the measure on the ballot along with two of his board colleagues. “It is way past time that the
recommendations of the Board of Supervisors 1996 Prostitution Task Force were implemented,” said the measure’s proponent, Maxine Doogan. “Criminalizing sex workers has been putting workers at risk of violence and discrimination for far too long.”

The prostitution reform measure joins two other voter-submitted measures on the local Nov. 4 ballot, along with eight measures put on the ballot by the mayor or members of the Board of Supervisors, with many others expected to be added in the next several weeks.

Starchild – (415) 621-7932 / (415) 368-8657 / RealReform@…
Maxine Doogan – (415) 265-3302 / MistressMax@…

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