As expected, the biggest cut will be to salaries, which will drop by 90% on average. Kenneth Feinberg, the Treasury Department’s special master for compensation, is expected to issue his determinations today.

Professor Bainbridge explains just how outrageous, unconstitutional, and violative of fundamental principles of law the Obama Administration’s business decrees are.

There really ought to be more outrage about this proposal. As a letter to the editor in today’s WSJ (Wednesday, 10/21—the Journal does not archive Letters to the Editor, so Professor Bainbridge was remiss in failing to credit Peter Kirchman of Bay City, Michigan for this excellent contribution to the debate – DZ) aptly observed:

To those who would defend the government’s ability, justification and right to negate Ken Lewis’s contract and hijack his pay (“The Fall Guy,” Review & Outlook, Oct. 2), I offer a John Adams quote found in David McCullough’s book “John Adams.” Adams stopped at a tavern for lodging. He happened to overhear several locals discussing British actions regarding taxation. One man says to the rest, “. . . if Parliament can take away Mr. Hancock’s wharf and Mr. Row’s wharf, they can take away your barn and my house.”

Mr. Lewis might already be considered rich, as was Mr. Hancock, and the amount of severance may seem to be outrageous, but to you supporters of this confiscation I ask: If you grant the federal government’s pay czar the power to confiscate or alter the pay of 175 Americans today, whose barn or house is next?

The point is exceptionally well taken. The Obama administration has shown a shocking disregard for the rule of law when contract rights interfere with the administration’s ability to reorder the American economy as it sees fit.

As Todd Zywicki observed when Obama threw Chrysler lenders under the bus:

The rule of law, not of men—an ideal tracing back to the ancient Greeks and well-known to our Founding Fathers—is the animating principle of the American experiment. While the rest of the world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was established to circumscribe arbitrary government power. It would do so by establishing clear rules, equally applied to the powerful and the weak. Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation and business from a failure to toe a political line? We might expect this behavior from a Hugo Chávez. But it would never happen here, right? Until Chrysler. ... The Obama administration’s behavior in the Chrysler bankruptcy is a profound challenge to the rule of law. Secured creditors—entitled to first priority payment under the “absolute priority rule”—have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get about 50 cents on the dollar.

And then Obama bullied GM’s bondholders to the extent that even the Obamabots on the Washington Post’s editorial board were moved to protest that “the Obama administration is coming dangerously close to engaging in financial engineering that ignores basic principles of fairness and economic realities to further political goals.

When high school football players run through a banner with Bible verses on it, does that violate the US Constitution?

The school board attorney stopped them from doing that in Fort Oglethorpe, Georgia, telling them they were “violating federal law.”

2:15 video

It is remarkable how the Constitution’s prohibition of a federally established church (state established churches still existed when the Constitution was adopted) has evolved first into a wall of separation between church and state, and ultimately into widespread bans on public expression of religious sentiment.

Washington Post story.

Let me place myself in the President’s chair, at the head of a party in this country, aiming to extend the influence of the governing powers at the expence of the governed; to increase the authority and prerogative of the Executive, and to reduce by degrees to a mere name, the influences of the people. How should I set about it? What system should I pursue?

.. As the rights reserved by the State Governments and the bounds and limits set by the Constitution of the Union, are the declared barriers against the encroachments of entrusted power, my first business would be to undermine that Constitution, and render it useless, by claiming authority which, though not given by the express words of it, might be edged in under the cover of general expressions or implied powers — by stretching the meaning of the words used to their utmost latitude, — by taking advantage of every ambiguity — and by quibbling upon distinctions to explain away the plain and obvious meaning. It would be my business to extend the powers of the Federal Courts and of Federal Officers — to encroach upon the State jurisdictions — to throw obloquy on the State Governments as clogs upon the wheel of the General Government — for that purpose to promote a spirit of party among them, and subject to accusations of disaffection those who were opposed to the measures I would pursue. In addition to this I would now and then exercise trifling acts of authority not granted by the Constitution, under some undefined notion of prerogative. If by such means one encroachment should be made good, it would be a precedent for another, until the public by degrees would become accustomed and callous to them.

Cooper’s Address to the Readers of the Sunbury and Northumberland Gazette, June 29, 1799

Thomas Cooper biography

(N)ow the Statist Democrats are launching the most massive attack on the American people in the history of government.

They promise health care for everyone, but they will not—and they can’t possibly—deliver it.

While our health care system is certainly imperfect—because all humans are imperfect, including doctors, nurses, hospitals and insurance companies—they are more perfect, more competent, more informed, more capable than all of the bureaucrats to whom they’ll be forced to report: a bureaucracy that will make all decisions about your health care.

And it is easy to confirm the havoc that socialized medicine will wreak on American society. All you need to do is to look at how Democrats are trying to ram home socialized medicine: they’re doing it as fast as possible with as little debate as possible. For the indigent and the poor, we already have programs like Medicaid and SCHIP and dozens of state programs. Yet we’re told tens of millions of us must give up our private insurance and pay for a government-run program.

Democrats claim it will be more cost-effective and efficient. ... The man who’s had the least experience at running anything is going to unleash the most massive federal leviathan in history, nationalizing nearly 20% of the economy.

This has been the dream of the Statist Democrats since FDR: to force each and every one of you, whether you like it or not, into a strait-jacket form of health care. It controls you; the actual being, the person.

Nameless, faceless bureaucrats substituting their decisions for those of your doctor.

Deciding whether you will have an operation or not. Whether you will have an MRI or not. Whether you will receive a life-saving, life-extending drug or not.

And we know this, because this is what occurs in Canada and Britain and other centralized bureaucracies, where you simply can not have access to advanced health care, period.

Where will their new drugs come from, since we produce half of them? Who will invent the new medical technologies for them, since we invent roughly three-fourths of them?

Who will run the hospitals and what will they look like when the government unions run them? ...

They’ve been lying about the number of people without health care. They’ve been lying about whether the public is satisfied with health care. They’ve been lying about every aspect of health care.

They unleashed the slip-and-fall lawyers on the medical system, causing untold higher costs for medical practitioners. They’ve attacked the health care system relentlessly, driving up costs just like they’ve attacked the energy industry and the automakers.

And even when they have complete monopolistic control of a system, like the educational system in America, they want more control. It’s never enough. They want more money, more regulations. More. They need to “invest”. They need to raise taxes. They need to repress. They need to compel.

Read the whole thing.

Hat tip to the News Junkie.
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David B. Rivkin Jr and Lee A. Casey, in the Wall Street Journal, argue that, if the 14th Amendment protects a “central right of privacy” entitling freedom of choice on abortion, wouldn’t the same right protect freedom of choice in health care generally, precluding government confiscation, redistribution, and subsequent rationing of individual health care resources?

The Supreme Court created the right to privacy in the 1960s and used it to strike down a series of state and federal regulations of personal (mostly sexual) conduct. This line of cases began with Griswold v. Connecticut in 1965 (involving marital birth control), and includes the 1973 Roe v. Wade decision legalizing abortion.

The court’s underlying rationale was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

It is, of course, difficult to imagine choices more “central to personal dignity and autonomy” than measures to be taken for the prevention and treatment of disease—measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be “necessary” by an expectant mother and her physician.

If the government cannot proscribe—or even “unduly burden,” to use another of the Supreme Court’s analytical frameworks—access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?

Read the whole thing.

(T)he tobacco regulation bill recently passed by Congress indicates that the spirit of liberty is even scarcer than usual in the halls of government.

What motivates advocates of stricter tobacco regulation is the unassailable assurance that they are not only completely right but that their opponents are a) wrong and b) evil. This invigorating certitude makes it possible to justify almost anything that punishes cigarette companies, even if it does no actual good—or does actual harm.

One of the main purposes of the new law is to reduce the number of smokers in the name of improving “public health.” This is a skillful use of language to confuse rather than enlighten.

An individual decision to take up cigarettes is a private event, not a public one, and its health effects are almost entirely confined to the individual making the choice. ...
Cigarette makers are forbidden to use color in ads in any publication whose readership is less than 85 percent adult. They are barred from using music in audio ads. They are not allowed to use pictures in video ads. They may not put product names on race cars, lighters, caps, or T-shirts. From all this, you almost forget the fleeting passage in the Constitution that says “Congress shall make no law … abridging the freedom of speech.”

When it gets in a mood to regulate, Congress doesn’t like to trouble itself with nuisances like the First Amendment. In 2001, the Supreme Court ruled it was unconstitutional for Massachusetts to ban outdoor ads within 1,000 feet of any schools and playgrounds. So what does this law do? It bans outdoor ads within 1,000 feet of schools and playgrounds.

The Court said the Massachusetts law was intolerable because it choked off communication about a legal activity. “In some geographical areas,” complained Justice Sandra Day O’Connor, “these regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers.”

But to anti-smoking zealots, that effect is not a bug but a feature. The only problem they have with imposing “nearly a complete ban” is the “nearly” part.

Read the whole thing.

Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.

The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.

“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.

“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”

Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.

“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.

On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.

In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.

Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.

To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.

This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.

This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.

Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.

The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.

Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.

Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).

Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.

There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.

A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.

Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.

0:33 video

Hat tip to Ed Morrissey.

After only three months in office, David J. Rothkopf declares Obama all-time champion of Czar creation.

With yesterday’s naming of Border Czar Alan Bersin, the Obama administration has by any reasonable reckoning passed the Romanov Dynasty in the production of czars. The Romanovs ruled Russia from 1613 with the ascension of Michael I through the abdication of Czar Nicholas II in 1917. During that time, they produced 18 czars. While it is harder to exactly count the number of Obama administration czars, with yesterday’s appointment it seems fair to say it is now certainly in excess of 18.

In addition to Bersin, we have energy czar Carol Browner, urban czar Adolfo Carrion, Jr., infotech czar Vivek Kundra, faith-based czar Joshua DuBois, health reform czar Nancy-Ann DeParle, new TARP czar Herb Allison, stimulus accountability czar Earl Devaney, non-proliferation czar Gary Samore, terrorism czar John Brennan, regulatory czar Cass Sunstein, drug czar Gil Kerlikowske, and Guantanamo closure czar Daniel Fried. We also have a host of special envoys that fall into the czar category including AfPak special envoy Richard Holbrooke, Mideast peace envoy George Mitchell, special advisor for the Persian Gulf and Southwest Asia Dennis Ross, Sudan special envoy J. Scott Gration and climate special envoy Todd Stern. That’s 18.

This is a very conservative estimate, however. I will allow you to pick whom you would like out of the remaining candidates. For example you could count de facto car czar Steve Rattner even though the administration went out of its way to say they weren’t going to have a car czar… before he ultimately emerged as the car czar. You could count National Director of Intelligence Dennis Blair, often referred to as the intelligence czar, although you might not want to because his job has a different kind of status on the org chart. I’m not going to count Paul Volcker who was referred to as Obama’s economic czar because Obama is not making much use of Volcker (at least according to reports).

But you certainly might want to count people deemed by the media to be the “cyber security czar” or the “AIDs czar” or the “green jobs czar” even if there are reasons to quibble about the designation of one or two of them.

Why do all these imperial appointments matter?

They matter procedurally because “Czar” appointments do not require Senatorial confirmation and represent an end-run around the Constitutional “Advise and Consent” prerogative of the US Senate. Obama can make any number of rancid radicals into “czars” of this, that, or the other thing, delegating to them large executive branch powers and responsibilities, even in cases of individuals who would not be confirmable by a vote in the Senate.

Fox News:

Czardom does not sit well with Sen. Robert Byrd. Though slowed by age, the West Virginia Democrat remains vigorous in his defense of the powers ceded to the Congress by the Constitution. He said he believes czars are a slick way of governing without having to answer to Congress.

There is no constitutional requirement that czars undergo those pesky Senate confirmation hearings.

Former Rep. Ernest Istook said he doesn’t like the term czar either because it’s too Russian.

“We could just call somebody the big boss, el jefe, head honcho, the big cheese,” he said. “My father used to refer to people as the chief cook and bottle washer.”

Istook said he believes the Obama team is using the appointment of czars to reinvent how the executive branch operates.

[T]he Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional.

By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: “Here is $700 billion. You say you will use some of it to buy up banks’ ‘troubled assets.’ But if you prefer to do anything else with the money—even, say, subsidize automobile companies—well, whatever.”

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates “the nondelegation doctrine.” Although the text does not spell it out, the Constitution’s logic and structure—particularly the separation of powers—imply limits on the size and kind of discretion that Congress may confer on the executive branch.

The Vesting Clause of Article I says, “All legislative powers herein granted shall be vested in” Congress. All. Therefore, none shall be vested elsewhere. Gary Lawson of Boston University’s School of Law suggests a thought experiment:

Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says the president shall define the statute’s meaning with regulations that define and promote goodness and niceness and specify penalties for violations.

Surely this would be incompatible with the Vesting Clause. Where would the Goodness and Niceness Act really be written? In Congress? No, in the executive branch. Lawson says that nothing in the Constitution’s enumeration of powers authorizes Congress to enact such a statute. The only power conferred on Congress by the Commerce Clause is to regulate. The Goodness and Niceness Act does not itself regulate, it just identifies a regulator.

The Constitution empowers Congress to make laws “necessary and proper” for carrying into execution federal purposes. But if gargantuan grants of discretion are necessary, are the purposes proper? Indeed, such designs should be considered presumptively improper. What, then, about the Goodness and Niceness Act, which, as Lawson says, delegates all practical decision-making power to the president? What about EESA? ...

As government grows, legislative power, and with it accountability, must shrink. The nation has had 535 national legislators for almost half a century. During that time the federal government’s business—or, more precisely, its busy-ness—has probably grown at least twenty-fold. Vast grants of discretion to the executive branch by Congress, such as EESA, may be necessary—if America is going to have constant governmental hyperkinesis. If Washington is going to do the sort of things that EESA enables—erasing the distinction between public and private sectors; licensing uncircumscribed executive branch conscription of, and experimentation with, the nation’s resources.

Since the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers. And Chief Justice John Marshall did say that the “precise boundary” of the power to “make” or the power to “execute” the law “is a subject of delicate and difficult inquiry.” Still, surely sometimes the judiciary must adjudicate such boundary disputes.

The Supreme Court has said: “That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” And the court has said that properly delegated discretion must come with “an intelligible principle” and must “clearly delineate” a policy that limits the discretion. EESA flunks that test.

Newsmax:

The Obama administration is ending the Census Bureau’s traditional autonomy – a move that has Republicans outraged over the White House’s politicization of counting Americans.

Last week, an administration official revealed that the yet-to-be-named director of the Census Bureau will report to the White House rather than Commerce Secretary nominee Judd Gregg, a Republican.

What this move undoubtedly signifies is the Obama Administration’s intention to make an end run around the Constitution’s specification of an “actual enumeration” every decade to permit statistical estimates of non-actually-enumerated democrat constituencies in order to enlarge the congressional representation and budgetary apportionment for inner-city, one-party democrat-controlled districts. The estimating would be done by hardcore democrat party partisans, of course, who can estimate with the best.

Mr. Gregg should never have agreed to accept the Secretary of Commerce appointment in the context of such a cynical and opportunistic partisan manuever.
—————————————————-

UPDATE 2/13:

Senator Judd Gregg announced, very politely, that he was declining the appointment due to “irresolvable conflicts.” Good for him.

The federal magistrate found that, D.C. v. Heller having recognized the existence of a Constitutionally-protected individual right, Due Process comes into play, and it becomes necessary for the Government to establish the existence of a public danger of such a defendant engaging in violent actions using firearms before his Right to Keep and Bear Arms may be infringed.

The US Constitution has begun returning from exile.

In the course of a valedictory interview with Chris Wallace of Fox News, Vice President Cheney took some satisfaction in the administration he served having succeeded in preventing a second mass terrorism attack, and shrugged off its loss of popularity.

CHENEY: We didn’t set out to achieve the highest level of polls that we could during the course of this administration.

We set out to do what we thought was necessary and essential for the country. That clearly was the guiding principle with respect to the aftermath of 9/11. I feel very good about a lot of the things we’ve done in this administration. I think that they will be viewed in a favorable light when it’s time to write the history of this era.

I think the fact that we were able to protect the nation against further attacks from Al Qaida for 7.5 years is a remarkable achievement. To do that, we had to adopt some unpopular policies that have been widely criticized by our critics.

But I think in terms of — is 29 percent good enough for me? Well, we fought a tough reelection battle. We won by an adequate margin in 2004. We’ve been here for eight years now. Eventually, you wear out your welcome in this business.

But I’ve — I’m very comfortable with where we are and what we achieved substantively. And frankly, I would not want to be one of those guys who spends all his time reading the polls. I think people like that shouldn’t serve in these job.

And in response to a predictable reference to alleged Constitutional overreach, Cheney effortlessly eviscerates his democrat opponent.

WALLACE: Biden has said that he believes you have dangerously expansive views of executive power.

CHENEY: Well, I just fundamentally disagree with him. He also said that the — all the powers and responsibilities of the executive branch are laid out in Article 1 of the Constitution. Well, they’re not. Article 1 of the Constitution is the one on the legislative branch.

Joe’s been chairman of the Judiciary Committee, a member of the Judiciary Committee in the Senate, for 36 years, teaches constitutional law back in Delaware, and can’t keep straight which article of the Constitution provides for the legislature and which provides for the executive.

So I think — I write that off as campaign rhetoric. I don’t take it seriously. And if he wants to diminish the office of vice president, that’s obviously his call.

And on the inadvertent comedy front, excitable Andrew Sullivan uses the Cheney interview as the occasion for one of the most spectacular displays of begging the question achieved by any leftwing commentator all year.

What Cheney has advanced is that the president has the right to dissolve the constitution permanently. That he has the right to commit war crimes with impunity. That there is no legal authority to which he is ever required to pay deference in a war that is his and his alone to declare and end. Now when you consider that, in Cheney’s view, these war-powers are limitless, and that war is declared not by the Congress but by the president, and can be defined against a broad, amorphous enemy such as “terrorism”, and never end, you begin to see what a dangerous man he is, and how much danger we have all been in since he seized control of the government seven years ago. ...

The vice-president long ago became an enemy to the Constitution and to all it represents. He should have been impeached long ago; and the shamelessness of his exit makes prosecution all the more vital. If we let this would-be dictator do what he has done to the constitution and get away with it, the damage to the American idea is deep and permanent.

And then he stole the baby’s candy and kicked the cat, too, right, Andrew?

In a 2001 interview on Chicago public radio, Obama lamented that “the Supreme Court never ventured into the issue of the redistribution of wealth.” The problem, he said, was that the court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty.”

In this perhaps unguarded moment, Obama became one of the few liberal politicians candid enough to admit that the Constitution poses a fundamental obstacle to their agenda.

This is a popular theory in academic circles. It is the fundamental argument of Cass Sunstein, a colleague of Obama’s at the University of Chicago Law School (now on his way to Harvard), who is often mentioned as an Obama adviser and potential Supreme Court nominee, and the author of The Second Bill of Rights: FDR’s Unfinished Revolution and Why We need it More than Ever.

The second bill of rights idea derived from two famous speeches that Franklin Delano Roosevelt gave—one at the San Francisco Commonwealth Club during the 1932 campaign and his 1944 annual message to Congress. In the Commonwealth Club address, he spoke of the advent of “enlightened administration,” which would redistribute resources in accordance with an “economic declaration of rights.” In his 1944 message to Congress, Roosevelt said that “our rights to life and liberty”—the negative liberty to which Obama referred, had “proved inadequate to assure us equality in the pursuit of happiness.” He claimed that “In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights.” This bill of rights included the right to a job, the right to food and recreation, the right to adequate farm prices, the right to a decent home, the right to medical care, and the right to a good education.

Of course, these are not “rights” at all—not in the sense that the framers and ratifiers of the Declaration of Independence and Constitution used the term—but entitlements. From the founding until the twentieth century, the American regime assumed that government’s purpose was to secure pre-existing natural rights—such life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody’s exercise of his own rights limits anyone else’s similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once. Entitlements, on the other hand, require someone else to provide me with the substantive good that the exercise of rights pursues. The right to work, for example, is fundamentally different from the right (entitlement) to a job; the right to marry does not entitle me to a spouse; the right to free speech does not entitle me to an audience.

The New Deal is often described as a “constitutional revolution.” In fact, it was much more than that. It involved a rejection not just of the structure and principles of the Constitution, but those of the theory of natural rights in the Declaration of Independence—that, as Jefferson put it, governments are instituted in order to secure our rights. Roosevelt envisioned not a new constitution, but a new idea of what Sunstein calls “a nation’s constitutive commitments.”

As to this problem, Sunstein says that “The best response to those who believe that the second bill of rights does not protect rights at all is just this: unembarrassed evasion.”

The U.S. Supreme Court will consider Friday whether to take up a lawsuit challenging President-elect Barack Obama’s U.S. citizenship, a continuation of a New Jersey case embraced by some opponents of Obama’s election.

The meeting of justices will coincide with a vigil by the filer’s supporters in Washington on the steps of the nation’s highest court.

The suit originally sought to stay the election, and was filed on behalf of Leo Donofrio against New Jersey Secretary of State Nina Mitchell Wells.

Legal experts say the appeal has little chance of succeeding, despite appearing on the court’s schedule. Legal records show it is only the tip of an iceberg of nationwide efforts seeking to derail Obama’s election over accusations that he either wasn’t born a U.S. citizen or that he later renounced his citizenship in Indonesia.

The Obama campaign has maintained that he was born in Hawaii, has an authentic birth certificate, and is a “natural-born” U.S. citizen. Hawaiian officials agree.

If Obama really was born in Hawaii, and actually has that legitimate birth certificate, why does he have a problem with producing and displaying it?

This 1:02 video has an inflammatory and partisan tone, but does summarize the questions about Obama’s citizenship succinctly.

In a now famous 2002 radio interview, Barack Obama regretted the Warren Court’s failure to break free from “the essential constraints placed in the Constitution by the founding fathers.”

In Newsweek, George Will discusses how Obama’s very candidacy represented a fundamental break with constraints intended by the founding fathers. Barack Obama is the first presidential candidate in US history to achieve election, in the manner of an Escher print, on the basis of no personal achievement beyond the competence and well-oiled organization of his actual campaign for the presidency.

James W. Ceaser, professor of politics at the University of Virginia, writing in the Claremont Review of Books, notes that, contrary to conventional understanding, the Constitution created not three but four “national institutions.” They are the Congress, the Supreme Court, the presidency—and the presidential selection system, based on the Electoral College. “The question of presidential selection,” Ceaser writes, “was just that important to the Founders.”

Under their plan, the nomination of candidates and the election of the president were to occur simultaneously. Electors meeting in their respective states, in numbers equal to their states’ senators and representatives, would vote for two people for president. The electors’ winnowing of aspirants was the nomination process. When the votes were opened in the U.S. House of Representatives, the candidate with a majority would become president, the runner-up would become vice president. If no person achieved a majority of electoral votes, the House would pick from among the top five vote getters. Note well: The selection of presidential nominees was to be controlled by the Constitution.

The Founders’ intent, Ceaser writes, was to prevent the selection of a president from being determined by the “popular arts” of campaigning, such as rhetoric. The Founders, Ceaser says, “were deeply fearful of leaders deploying popular oratory as the means of winning distinction.” That deployment would invite demagoguery, which subverts moderation. “Brilliant appearances,” wrote John Jay in The Federalist Papers 64, “… sometimes mislead as well as dazzle.” By telling members of the political class how not to get considered for the presidency, the Founders hoped to (in Ceaser’s words) “make virtue the ally of interest” and shape the behavior of that class.

Barack Obama completed the long march away from the Founders’ intent. Most recent presidential candidacies have been exercises of personal political entrepreneurship; his campaign, powered by the “popular art” of oratory, was the antithesis of the Founders’ system.

The Progressives of 100 years ago wanted to popularize presidential selection by rewarding candidates gifted in the popular art of inflaming excitement through oratory. They opened a door through which, eventually, strode George Wallace, Jesse Jackson, Pat Robertson, Pat Buchanan, Howard Dean and others.

Ceaser notes that the candidate whose path to the presidency most resembled Obama’s was Jimmy Carter. He, too, used an intensely personal and inspirational appeal to compensate for a thin résumé. Having courted the public with flattering rhetoric—promising “a government as good as the American people”—Carter came a cropper as president, partly because he was a one-man political startup. He had been selected by a process that rewarded running as a solitary savior, offering his personal qualities—his supposed moral excellence—as the key to national improvement.

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” – or the original principles “underlying” the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge.

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a “collective right” protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn’t enough. If the scope of the right is defined narrowly by courts, recognition won’t mean much in practice.

Read the whole thing.

It is depressing to imagine how a Court which finds execution by lethal injection for child rape violative of the cruel and unusual punishments clause of the 8th Amendment is capable of reading the Second Amendment.

There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. ... So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

It would certainly be nice if he’s right.

The nation’s leading gun control group filed a “friend of the court” brief back in January defending the gun ban in Washington, D.C. But with the Supreme Court poised to hand down a potentially landmark decision in the case, the Brady Campaign to Prevent Gun Violence fully expects to lose.

“We’ve lost the battle on what the Second Amendment means,” campaign president Paul Helmke told ABC News. “Seventy-five percent of the public thinks it’s an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.”

While the Brady Campaign is waving the white flag in the long-running debate on whether the Second Amendment protects an individual’s right to bear arms or merely a state’s right to assemble a militia, it is hoping that losing the “legal battle” will eventually lead to gun control advocates winning the “political war.”

“We’re expecting D.C. to lose the case,” Helmke said. “But this could be good from the standpoint of the political-legislative side.”

Lawyers for Mayor Bloomberg are asking a judge to ban any reference to the Second Amendment during the upcoming trial of a gun shop owner who was sued by the city. While trials are often tightly choreographed, with lawyers routinely instructed to not tell certain facts to a jury, a gag order on a section of the Constitution would be an oddity.

“Apparently Mayor Bloomberg has a problem with both the First and the Second amendments,” Lawrence Keane, the general counsel of a firearms industry association, the National Shooting Sports Foundation, said.

The trial, set to begin May 27, involves a Georgia gun shop, Adventure Outdoors, which the city alleges is responsible for a disproportionate number of the firearms recovered from criminals in New York City. The gun store’s owner, Jay Wallace, says his store abides by Georgia and federal regulations and takes steps to avoid selling firearms to gun traffickers. Mr. Wallace’s store is one of 27 out-of-state gun shops sued by New York City, and the first to go to trial.

City lawyers, in a motion filed Tuesday, asked the judge, Jack Weinstein of U.S. District Court in Brooklyn, to preclude the store’s lawyers from arguing that the suit infringed on any Second Amendment rights belonging to the gun store or its customers. In the motion, the lawyer for the city, Eric Proshansky, is also seeking a ban on “any references” to the amendment.

“Any references by counsel to the Second Amendment or analogous state constitutional provisions are likewise irrelevant,” the brief states. ...

Of the city’s recent motion to preclude mention of the Second Amendment, a lawyer for Adventure Outdoors, John Renzulli, said, “If you can’t discuss the Bill of Rights in a court of law, where should we discuss these issues? Should we reserve it for the tavern?”

Mr. Renzulli said the city’s lawsuit did implicate the Second Amendment: “The politics involved here is whether the city has the power to go into another state and control the lawful sale of firearms.”

Still, Mr. Renzulli said he did not plan to oppose the city’s request regarding references to the Second Amendment. Mr. Renzulli, who has defended suits against the gun industry in Judge Weinstein’s courtroom before, said that in the past the defense has struck a deal with the plaintiffs on the matter: Lawyers for the gun industry won’t mention the Bill of Rights to the jury, if the plaintiffs don’t mention the National Rifle Association.

“We usually say we’re not talking about the Second Amendment and you’re not talking about the NRA as a huge lobbying group that controls the legislature,” Mr. Renzulli said.

He said he expected a similar agreement to be struck in the Adventure Outdoors case.

The Sun article fails to note that care had to have been taken to assure that this suit will be coming up before Judge Jack B. Weinstein, an activist leftist appointed to the bench by Lyndon Johnson, who routinely makes headlines with rulings favoring this sort of politically-motivated litigation.

Adventure Outdoors needs a better attorney. How can anyone be properly represented in a lawsuit involving firearms who thinks there is some kind of stigma attached to the National Rifle Association?

Hat tip to Walter Olson.

The operations of government require that members of the Executive Branch have the ability to discuss policy decision frankly, freely, and in privacy. Cynical Congressional fishing expeditions seeking material for political scandal-mongering over legitimate Executive Branch decisions (like the hiring or firing of US attorneys) ought to be refused cooperation.

Attorney General Michael Mukasey on Friday rejected referring the House’s contempt citations against two of President Bush’s top aides to a federal grand jury. Mukasey says they committed no crime.

Mukasey said White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers were right in refusing to provide Congress White House documents or testify about the firings of federal prosecutors.

“The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers,” Mukasey wrote House Speaker Nancy Pelosi.

The House voted two weeks ago to cite Bolten and Mukasey for contempt of Congress and seek a grand jury investigation. Most Republicans boycotted the vote.

Pelosi requested the grand jury investigation on Thursday and gave Mukasey a week to reply. She said the House would file a civil suit seeking seeking enforcment of the contempt citations if federal prosecutors declined to seek misdemeanor charges against Bolten and Miers.

Mukassey took only a day to get back to her. But he had earlier joined his predecessor, Alberto Gonzales, in telling lawmakers they would refuse to refer any contempt citations to prosecutors because Bolten and Miers were acting at Bush’s instruction.

I think the judge is probably right.

The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination.

The case, believed to be the first of its kind to reach this level, raises a uniquely digital-age question about how to balance privacy and civil liberties against the government’s responsibility to protect the public.

The case, which involves suspected possession of child pornography, comes as more Americans turn to encryption to protect the privacy and security of files on their laptops and thumb drives. FBI and Justice Department officials, meanwhile, have said that encryption is allowing terrorists and criminals to communicate their plots covertly.

Criminals and terrorists are using “relatively inexpensive, off-the-shelf encryption products,” said John Miller, the FBI’s assistant director of public affairs. “When the intent . . . is purely to hide evidence of a crime . . . there needs to be a logical and constitutionally sound way for the courts” to allow law enforcement access to the evidence, he said.

On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.

The government has appealed, and the case is being investigated by a grand jury, said Boucher’s attorney, James Boudreau of Boston. He said it would be “inappropriate” to comment while the case is pending. Justice Department officials also declined to comment.

A D.C. ban on home handguns may not be constitutional, the solicitor general tells the Supreme Court, but rights are limited and federal firearm restrictions should be upheld.

In their legal battle over gun ownership and the 2nd Amendment, gun- control advocates never expected to get a boost from the Bush administration.

But that’s just what happened when U.S. Solicitor General Paul D. Clement urged the Supreme Court in a brief Friday to say that gun rights are limited and subject to “reasonable regulation” by the government and that all federal restrictions on firearms should be upheld.

Reasonable regulations include the federal ban on machine guns and other “particularly dangerous types of firearms,” he said in the brief. Moreover, the government forbids gun possession by felons, drug users, “mental defectives” and people subject to restraining orders, he said.

“Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulation are permitted by the 2nd Amendment,” Clement said. He filed the brief in a closely watched case involving Washington, D.C.’s ban on keeping handguns at home for self-defense.

The head of a gun-control group said he was pleasantly surprised by the solicitor general’s stand.

Paul Helmke, president of the Brady Campaign to Prevent Handgun Violence, said he saluted the administration for recognizing a need for limits on gun rights.

Disgusting.

It can find that the Second Amendment doesn’t really do anything – that it’s merely a relic of an older era. But that’s a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

It can find that the Second Amendment doesn’t grant individual rights, but only protects the right of states to arm their militias (or “state armies,” as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don’t like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

Other consequences of “state armies” seem even more drastic. As Tom Lehrer put it:

We’ll try to stay serene and calm /

When Alabama gets the bomb.

Finally, the court can find – in accordance with the views of law professors as diverse as Harvard’s Laurence Tribe and, well, me – that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

This last would be the least radical approach, as it’s consistent with public opinion (most Americans think the Second Amendment gives them a right to own a gun) and with the 40-plus states whose own constitutions already provide for a right to arms. It would probably be the easiest to implement, too, as federal courts could (to a degree at least) look to state law for some guidance on how to implement it.

Finding otherwise would be ticklish for the court in another way. In recent decades, the Supreme Court has found many rights that aren’t specifically spelled out in the Constitution – rights to things like abortion, contraception or sodomy. If the court now follows up by denying a right that does seem to be spelled out, it would put its own legitimacy in the public eye at grave risk.

WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.

Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia’s stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.

“If the court decides to take this up, it’s very likely it will end up being the most important Second Amendment case in history,” said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.

Henigan predicted “it’s more likely than not” that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.

Lawyers are swarming.

Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.’s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it. ..

The Second Amendment says, “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.”

Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.

“The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice,” New York and the three other states declared in an amicus brief.

Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual’s right to possess guns.

Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.

The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.

If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court’s conservative majority a chance to undermine gun-control laws nationwide.

On the one hand, the movement of legal scholarship in recent decades towards acknowledgment of the real meaning of the Second Amendment based on the historical content of the political theory of the period and numerous statements by the framers argues that Supreme Court consideration would necessarily recall the Second Amendment fully from exile, and produce nationwide enforcement of an individual right to keep and bear arms.

But, on the other hand, realism notes that the consequence of overturning every form of state and local gun prohibition, and very possibly the National Firearms Act of 1934 which effectively prohibited private possession of fully-automatic weapons are bound to seem highly unpalatable to most justices. Moreover, these days, intensely combative, ideologically charged decisions have a strong tendency to result in 5-4 decisions, turning upon the (commonly European-informed) private moral intuitions of Justice Anthony Kennedy.

On the whole, given the opportunity of having the fate of an important but widely disputed, Constitutional right decided, potentially for many decades, effectively by Justice Kennedy alone, I’d rather wait for a different Court.

Accordingly, when DC lawyers argue to lower federal courts, and to the U.S. Supreme Court, that the language of the U.S. Second Amendment is not an ordinary individual right, they are making an argument which is decisively contradicted by the very constitution adopted by the government whom the lawyers are representing.

Second, DC’s cert. petition makes the novel argument that the District of Columbia (an entity over which the U.S. Constitution grants Congress plenary power) is somehow already a sovereign state for purposes of the Second Amendment; they claim that the 1886 Supreme Court decision in Presser v. Illinois, which held that under the 14th Amendment Privileges and Immunities clause, none of the Bill of Rights are enforceable against states, immunizes D.C. today from the enforcement of the Second Amendment. Yet the New Columbia Constitution shows that D.C. wants to be a state and wants the exact language of the Second Amendment to be enforceable against D.C.

Leahy contends that

The attorney general is the people’s lawyer, not the president’s.”

which is an amusing piece of sophistry. Of course, “the people” don’t actually play any role in the federal system after elections are concluded. “The people” cannot decide what side the Justice Department will choose to take on an abortion case. “The people” cannot decide on whether or not Microsoft should be prosecuted for an alleged monopoly. And “the people” cannot decide whether 8 federal attorneys or all 93 need to be replaced.

What Senator Leahy means by “the people” is obviously what Thomas Sowell likes to call the consensus of the elect, the collective viewpoint of the mainstream media, the liberal democrat congressional majority, the establishment punditocracy, and so on.

The Senate has the Constitutional right to advise and consent on presidential appointments of ministers of state and officers of government, but executive power is vested by the Constitution in the president not in “the people” nor in Congress nor in the consensus of the liberal establishment. Cabinet officers really do work for the president.

Senator Leahy goes on to urge President Bush to select a candidate for attorney general, who is neither notoriously partisan nor divisive.

Above all, the new attorney general cannot interpret our laws to mean whatever the president wants them to mean. The departing attorney general showed a lack of independence from the president and the White House. We have seen the disastrous consequences.

The next attorney general must uphold the rule of law on behalf of all of the American people.

The president begins this process. Through his choice for attorney general, he can be a uniter or a divider. For the sake of the Department of Justice and its vital missions on behalf of the American people, this would be an excellent time to work with us to unite the nation.

And how does the last democrat president’s choice of attorney general measure up to Pat Leahy’s proposed standards?

Janet Reno was anything but a uniter, and it is difficult to imagine a possible Republican choice who could be equivalently offensive to the other party. Reno was a leftwing extremist , who many people believed misused her Dade County Prosecutorship on behalf of her own political agenda. She was appointed by President Clinton despite a record of ideologically-motivated, questionable prosecutions in Florida, and despite her dubious moral character and life-style.

Janet Reno went on to compile arguably the most controversial record of any attorney general, presiding over the federal massacre of Seventh Day Adventists in Waco, Texas, the seizure by machine-gun-wielding federal agents of a six-year-old refugee for deportation to Communist Cuba, and—of course—the unprececented and completely partisan firing of all 93 US Attorneys.

Larry Craig should not resign from the Senate.

He should force the Senate to expel him, which the Constitution provides for, but which the Senate has not done to any of its members since 1862.

If he can, Craig also should withdraw his guilty plea to what police say was “lewd conduct” in a public restroom at Minneapolis airport in June.

I have no doubt that Craig, an Idaho Republican, did what a cop says he did.

But I have a big doubt as to whether any of it was a crime. And I think a jury would have a reasonable doubt that he is guilty as charged.

Larry Craig committed a lewd act in that restroom? Larry Craig committed disorderly conduct in that restroom?

Let the prosecutors prove it in court.

Just because Craig is a jerk doesn’t mean he shouldn’t get civil rights in this country. ...

According to the Senate website: “Since 1789, the Senate has expelled only 15 of its entire membership. Of that number, 14 were charged with support of the Confederacy during the Civil War.”

The non-Civil War expulsion was that of William Blount of Tennessee, a Democratic Republican, who was expelled in 1797 for “a plan to incite the Creek and Cherokee Indians to aid the British in conquering the Spanish territory of West Florida.”

Larry Craig is no William Blount.

Larry Craig is a hypocrite, a liar and a fool.

But if we kicked people out of the Senate for that, how many senators would we have left?

As word comes of Sen. Larry Craig’s reconsideration of his announced resignation from the U.S. Senate, it turns out that his best ally in getting rid of his guilty plea for his conduct in a Minneapolis airport restroom may be the United States Constitution.

If the senator had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator’s arrest and guilty plea will have to be vacated.

This is because the Constitution, in a straightforward and unambiguous manner, states in Article 1, Section 6 that “Senators and Representatives. shall. be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same.” (emphasis mine) The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.

Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.

If the senator had flashed the Constitution at the officer as soon as the officer flashed his badge at him, the officer would have had no choice but to release the senator to go on his way.

This little detail (which I should have remembered, having discussed it myself in relation to the FBI search of Congressman Jefferson’s office) provides quite a plot twist.

It is difficult to imagine a court seeing any alternative to throwing out that Minneapolis misdemeanor on Constitutional grounds. Senator Craig, therefore, winds up with no conviction, and does not need to resign. The State of Idaho, and the rest of America, gets to retain the services of a senator with a 96 ACU rating. A happy ending for all but the democrats.

The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson’s office last year and viewed legislative documents, a federal appeals court ruled Friday.

The court ordered the Justice Department to return any privileged documents it seized from the Louisiana Democrat’s office on Capitol Hill. The court did not order the return of all the documents seized in the raid.

Jefferson argued that the first-of-its-kind raid trampled congressional independence. The Justice Department said that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker’s documents.

The U.S. Court of Appeals for the District of Columbia Circuit rejected that claim. The three-judge panel unanimously ruled that the search itself was constitutional but that FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business.

“The review of the Congressman’s paper files when the search was executed exposed legislative material to the Executive” and violated the Constitution, the court wrote. “The Congressman is entitled to the return of documents that the court determines to be privileged.”

The raid was part of a 16-month international bribery investigation of Jefferson, who allegedly accepted $100,000 from a telecommunications businessman, $90,000 of which was later recovered in a freezer in the congressman’s Washington home.

Jefferson pleaded not guilty in June to charges of soliciting more than $500,000 in bribes while using his office to broker business deals in Africa. The Justice Department said it built that case without using the disputed documents from the raid.

The court did not rule whether, because portions of the search were illegal, prosecutors should be barred from using any of the records in their case against Jefferson. That will be decided by the federal judge in Virginia who is presiding over the criminal case.

“We’re pleased with the court’s decision that makes it clear that the search violated the Speech or Debate Clause of the Constitution,” Jefferson’s attorney, Robert Trout, said after a brief review of the ruling. He said he has not yet discussed the decision with Jefferson.

The Justice Department did not immediately return messages seeking comment on the decision. Officials have said they took extraordinary steps, including using an FBI “filter team” not involved in the case to review the congressional documents. Government attorneys said the Constitution was not intended to shield lawmakers from prosecution for political corruption.

The court was not convinced. It said the Constitution insists that lawmakers must be free from any intrusion into their congressional duties. Such intrusion, even by a filter team, “may therefore chill the exchange of views with respect to legislative activity,” the court held.

The case has cut across political party lines. Former House Speakers Newt Gingrich, a Republican, and Thomas Foley, a Democrat, filed legal documents opposing the raid, along with former House Minority Leader Bob Michel, a Republican.

Conservative groups Judicial Watch and the Washington Legal Foundation were joined by the liberal Citizens for Responsibility and Ethics in Washington in supporting the legality of the raid.

This blog differed from most conservative blogs last year at the time of the raid, believing that Article I. Section 6 providing for Congressional immunity from arrest while Congress is in session would very likely be interpreted by the court as precluding a raid on a Congressman’s office.

Of course, the matter is certain to go on to the Supreme Court. I think they will very probably hear the case, and I think it is most likely that they will uphold the First Circuit’s ruling.

But while it doesn’t seem very plausible that we could possibly succeed in passing laws banning the building of Wahabi mosques in the United States, I do think we could stop allowing Muslims to enter the country. There is certainly precedent. During the last major period of immigration around the turn of the last century, persons seeking admission to the United States were required to affirm that that they were not members of a hereditary aristocracy, Anarchists, or Polygamists (i.e., Mormons).

Becky Akers and Donald J. Boudreaux, in the Christian Science Monitor of all places, supply the right answers: no restrictions on immigration, no welfare for immigrants.

The Constitution does not authorize the federal government to control immigration. Nor does it say anything about illegal aliens. We looked for a clause with directions for ranking immigrants on a points system – another feature of the Senate’s reform bill – but we couldn’t find one.

Sadly, lawmakers have repeatedly interpreted this silence as license for ill-conceived legislation. Congress began barring entry to the nation in 1875 with prostitutes and convicts. Soon, all sorts of people fell short of congressional glory: ex-convicts in 1882, along with Chinese citizens, lunatics, and idiots. Paupers, polygamists, and people suffering from infectious diseases or insanity made the list in 1891, while the illiterate were banned in 1917. ...

Given the talk about point systems, guest-worker programs, and fenced borders, you’d think immigration endangers America’s cultural and economic wealth. But just as the unhampered flow of goods and services – free trade – blesses participants, the easy flow of workers – free labor markets – also brings unprecedented prosperity.

By contrast, schemes to control immigrants hurt everyone, native or newcomer, and not just economically. Customs agents often abuse immigrants at the borders, but they also interrogate, search, and fine returning Americans.

Immigrants must produce the proper papers for bureaucrats’ inspection, but so do their American employers and landlords. And let’s not even think about the scary implications of the draconian Real ID Act.

As technology and globalization continue shrinking the world, people and ideas move more quickly and freely. Political borders become increasingly irrelevant. But that’s fine because the qualities that define Americans don’t depend on geography. Rather, it’s their history of liberty, pluck, ingenuity, optimism, and the pursuit of happiness. Culture is a matter of mind and spirit. Why entrust it to politicians, border guards, and green cards?

The ideal immigration policy for this smaller world would harmonize with both the Constitution and common decency. It wouldn’t deny anyone the inalienable right to come and go. ...

If Congress seriously wants reform, it might begin by returning decisions on immigration to the individuals involved, in obedience to the Constitution’s Ninth and 10th Amendments.

But Congress will need to go further. Requiring taxpayers to subsidize immigrants’ healthcare, education, food, shelter, or anything else breeds resentment.

Plenty of private charities will extend a hand to newcomers, not to mention friends and families eager to help their countrymen adjust to American life. ...

What do we do about the 12 million illegal immigrants already here? Apologizing for their poor welcome is a start. Then we can hire them, patronize their businesses, become friends. So long as we don’t control them, and they don’t expect our taxes to support them, goodwill should prevail on both sides. ...

Quota-wielding bureaucrats should not define the country’s demographic destiny. It’s time to let the free choices of millions of individuals determine America’s complexion.

The Second Amendment Foundation yesterday issued this press release:

Attorney General Alberto Gonzales’ troubling support of legislation that would allow him and future attorneys general the arbitrary power to block firearms purchases without due process is cause for him to step down as the nation’s highest ranking law enforcement officer, the Second Amendment Foundation said today.

The bill, S. 1237, was introduced last week at the Justice Department’s request by Sen. Frank Lautenberg (D-NJ), one of the most extreme anti-gunners in Congress. Called the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007,” this legislation would give the Attorney General discretionary authority to deny the purchase of a firearm or the issuance of a firearm license or permit because of some vague suspicion that an American citizen may be up to no good.

“This bill,” said SAF founder Alan Gottlieb, “raises serious concerns about how someone becomes a ‘suspected terrorist.’ Nobody has explained how one gets their name on such a list, and worse, nobody knows how to get one’s name off such a list.

“The process by which someone may appeal the Attorney General’s arbitrary denial seems weak at best,” Gottlieb suggested, “and there is a greater concern. When did we decide as a nation that it is a good idea to give a cabinet member the power to deny someone’s constitutional right simply on suspicion, without a trial or anything approaching due process?

“We’re not surprised that General Gonzales has found an agreeable sponsor in Frank Lautenberg,” Gottlieb observed. “The senator from New Jersey has never seen a restrictive gun control scheme he did not immediately embrace, and S. 1237 is loaded with red flags. It would allow an appointed bureaucrat the authority to suspend or cancel someone’s Second Amendment right without even being charged with a crime.

“Attorney General Gonzales has no business asking for that kind of power over any tenet in the Bill of Rights,” Gottlieb said. “He took an oath to uphold the Constitution, not trample it. Perhaps it is time for him to go.”

When you are being actively attacked by the Left, and you proceed to stab-in-the-back your own base on the Right which is defending you, I would call that “implicitly resigning.” Mr. Gonzalez might as well make the implicit explicit.

A PersonfromPolock, at the Volokh Conspiracy, observes (not entirely tongue-in-cheek) that slightly reducing the immunities supplied by the First Amendment would do a lot more to help than eviscerating the Second Amendment.

To the Editor:

A practical, commonsense way of reducing gun violence—especially in the schools—would be a federal law prohibiting, or at least seriously limiting, the interstate reporting of sensational gun crimes like Virginia Tech for five working days.

Such a law would not affect local coverage, where there is a need for the immediate dissemination of information, but would make the event ‘old news’ when it was finally reported nationally and therefore unlikely to get the massive publicity that invites further, copycat violence. Even a small reduction in today’s intense coverage of such events might, by not stimulating some potential gunman to action, save lives.

While ‘gun’ laws are hard to enforce because of the easy concealment of firearms, the public nature of ‘news’ would make enforcement of this law virtually automatic.

Because the delay would be short and serve a compelling government interest, it should pass constitutional muster; the Brady law serves admirably as a precedent here. While First Amendment absolutists will cavil, the simple fact is that it is as wrong to hold that the Press Clause protects a media ‘right’ to lethally endanger the public as it would be to hold that the Religion Clause protects human sacrifice.

Sincerely,

For some reason, even though the suggested law would clearly be ‘worth trying’ (a standard rationale of the Left), no ‘anti gun violence’ paper has ever published it.

Hat tip to Glenn Reynolds.

Malibu Times reports a vexing case featuring unseemly conflict between the rights of the owner of a piece of astronomically expensive California private property and science.

The discovery of a Clovis spearhead, believed to be thousands of years old, at a local home construction site has the homeowner and an archeologist at odds on what should be done with the site. The property owner wants to finish her home and move in, the archeologist wants to preserve the site, called Farpoint, and be allowed to conduct further research.

In September of 2005, Gary Stickel was the archeologist of record at the Farpoint site, then being developed by the private homeowner, and hired to oversee excavation at what was known as an “architecturally sensitive site.”

“Other objects, scrapers and micro-tools, had been found on the property,” Stickel said. “So we knew it was a culturally sensitive site. Then we found the spear point.”

The approximately 8-inch long, stone spear point is a tool produced by the Clovis people, believed to be the first human inhabitants of the Americas.

Not only does that date the piece to more than 11,000 years ago, the site of its location is the farthest point west in North America that the Clovis tribes can be traced, thus the designation “Farpoint.”

Dennis Stanford, director of the Paleoindian/Paleoecology Program at the Smithsonian Institute, in a written affidavit that authenticated the spearhead, said “... until the discovery of the Clovis occupation level at the Farpoint site, no “in situ” Clovis age sites are known along the West Coast of the Americas.”

The property owner, who is not identified to protect her privacy and the integrity of the archeologically sensitive site, has been cooperative through the last few years of research, but is ready to occupy her new house. And, Stickel said, she has shut down any further excavation.

Read the whole thing.

Wikipedia: Clovis point article.

If that Clovis Point is a legitimate artifact, and was not simply planted by an enterprising neighbor who prefered the site undeveloped, then there is a significant public interest in investigating, possibly in preserving, the site. But satisfying that public interest is indubitably a taking, and if the public wants to dig in that land, or to own that land, it ought to pay for it, not simply pass some regulations.

That’s not just a slip of the tongue. You don’t get the First and Second Amendments confused, if you are significantly personally interested in the issues associated with either one. You can just tell that Rudolph Giuliani and the Bill of Rights have not had a meaningful relationship since high school civics class about 50 years ago.

Hat tip to Brian Hughes.

John Lott review Giuliani’s dismal record on the Second Amendment here.

One person’s “reasonable and sensible” gun laws aren’t always another’s. So when Rudy Giuliani recognizes that the Second Amendment guarantees people the right to bear arms subject to “reasonable and sensible” laws, it really doesn’t tell us much. Yet one thing is for sure though: Giuliani is hardly a “strict constructionist” on constitutional matters, at least when it comes to the Second Amendment. It is a long ways from “shall not be infringed” to “shall infringe whenever Congress has a ‘reasonable and sensible’ justification.”

For those who support the Second Amendment, the main problem is that Giuliani has rarely met a gun regulation he didn’t see as “reasonable and sensible.” In 2000, he pointed out how he was “a very strong supporter of gun-control legislation” and called for everything from federal gun-licensing and registration to banning guns based upon their price.

Only in the last couple of months has he finally gone on the record as opposing a gun law: he came out against re-imposing the assault-weapons ban. Yet he originally supported this law when it was first adopted, and he wanted it renewed as recently as 2004, when it expired.

His support for all these gun laws isn’t too surprising given his belief that “the single biggest connection between violent crime and an increase in violent crime is the presence of guns in your society . . . . the more guns you take out of society, the more you are going to reduce murder. The less guns you take out of society, the more it is going to go up.”

Read the whole thing.

How Appealing reports and has links.

(On Wednesday), Congressman John Shadegg reintroduced the Enumerated Powers Act, a bill that highlights the importance of the Tenth Amendment and forces a continual reexamination of the role of the federal government.

“The Enumerated Powers Act would require Members of Congress to include an explicit statement of Constitutional authority into each bill that is introduced. It would hold Congress accountable for its actions,” said Shadegg.

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“According to the Tenth Amendment, the national government cannot expand its legislative authority into areas reserved to the States or the people,” said Shadegg. “It is a well-known fact that the size and scope of the federal government has exploded since the New Deal. Congress continues to operate without Constitutional restraint, creating costly and ineffective programs and blatantly ignoring the principles of federalism.”

We should be running this guy in 2008.

Something almost without precedent in America will happen Thursday. That’s the day when McCain-Feingold — aka the Bipartisan Campaign Reform Act of 2002 — will officially silence broadcast advertising that contains criticism of members of Congress seeking re-election in November. Before 2006, American election campaigns traditionally began in earnest after Labor Day. Unless McCain-Feingold is repealed, Labor Day will henceforth mark the point in the campaign when congressional incumbents can sit back and cruise, free of those pesky negative TV and radio spots. It is the most effective incumbent protection act possible, short of abolishing the elections themselves.

How can this possibly be, you ask? McCain-Feingold — named after the law’s main advocates, Sen. John McCain, R-Ariz., and Russ Feingold, D-Wis. — bans all broadcast political advocacy advertising that mentions candidates by name, beginning 60 days before the election. President Bush signed and the U.S. Supreme Court shockingly upheld McCain-Feingold three years ago…

None of this would surprise Alexander Hamilton, who argued in “The Federalist Papers” that written guarantees of things like freedom of the press would be purposely misconstrued by ambitious politicians and used as a pretext to do that which the Constitution banned: “I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” That is just about exactly what has happened now with the First Amendment and freedom of political speech, thanks to McCain-Feingold.

By election day, it should be clear to all reasonable persons that McCain-Feingold was a serious mistake and, like Prohibition, ought to be repealed.

George W. Bush was conserving all that political capital he was going to use to pass Social Security reform and permanent tax reform. He knew that the Supreme Court would jjust have to strike down McCain-Feingold, so why take the heat? He went ahead and signed it.

The Supreme Court’s astonishing ruling in McConnell v. Federal Election Commission, I woud say, deserves to rank as the absolute nadir of Supreme Court decisions, worse than Kelo, worse than Roe, worse than Dred Scott.

The Bipartisan Campaign Reform Act of 2002 is not only a direct attack on free speech, it is a direct attack on political free speech. If any form or species of speech deserves to be more protected than others, surely it would have to be specifically political free speech.

Senator John McCain, whose name was attached to this abominable piece of legislation, is likely to be a candidate for the Republican presidential nomination in 2008. Let’s hope it does not escape the GOP’s attention that this potential nominee has a record of conspicuous enmity to both the First and Second Amendments.

As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”

For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.

the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don’t know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don’t know enough of the facts to know if the program violates the Fourth Amendment.

Professor Kerr has identified the most interesting feature of the NSA flap. The December 16, 2005 New York Times leaked NSA story accused the Bush administration of “monitoring,” a term subsequently rhetorically upgraded to “spying,” and ultimately to “eavesdropping,” on international phone calls and email messages “within the United States” without warrants.

The Bush Administration’s accusers knew that they were taking a very serious step by divulging the existence of one or more top secret National Security programs, and they not surprisingly chose merely to apply partisan and inflammatory characterizations without ever specifically describing what it was that they were pointing to with feigned outrage.

Since all this is secret, no one outside certain intelligence agencies and the upper reaches of the US Government really knows who is doing what, when, or to whom. It is really as if all it required was for Messrs. Risen and Lichtblau to write a story saying “the Bush Administration is secretly violating the law,” some unidentified persons said “by doing bad things,” and the left faithfully falls into zombified lockstep, and begins shouting cries of pain and outrage in chorus.

A key problem is no one has ever been identified anyone who has ever experienced a known wrong, or a perceived consequence of any kind, from whatever it is that NSA might, or might not, be doing.

Can the Constitution really be violated, or the law be broken, by persons unknown secretly peforming unknown acts devoid of discernible effect?

The left obviously thinks that George W. Bush is just intrinsically unconstitutional, and that he breaks the law just by being in office, and their grasp of so much of the MSM allows them to create an echo-chamber alternative reality in which the liberal articles of faith which everybody knows seem very real, however tenuous their relationship to mere diurnal reality.

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it’s best if they’re fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you’ll be treated as a lawful combatant should you fall into the hands of the other side. There’ll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded—that there would, in fact, be a downside for going that route.

The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent. The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad—or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.

A push for global gun control gets under way next week in New York City, when the United Nations opens a conference intended to curb the international arms trade.

Amnesty International, Oxfam International and the International Action Network on Small Arms (IANSA) are pushing for a treaty to “protect civilians from armed violence.”

Those three groups—which have formed a coalition called the Control Arms Campaign—say their goal is to reduce arms proliferation and misuse—“and to convince governments to introduce global principles to regulate the transfers of weapons.” They are urging the United Nations to impose a “binding arms trade treaty.”

According to Amnesty International, nearly 2 billion people live in deep poverty, a problem made worse by the “uncontrolled proliferation of guns and other weapons that also fuels human rights abuses and escalates conflicts.” Amnesty International claims that weapons kill more 1,000 men, women, and children every day.

“It doesn’t have to be like this,” Amnesty International says on its website. The Control Arms Campaign believes a global Arms Trade Treaty is the solution.

But in the United States, defenders of the Second Amendment are insulted by what they see as a carefully timed assault on the U.S. Constitution.

They note that the U.N. Conference on Global Gun Control will run from July 26-July 7—a time span that includes the Fourth of July, Independence Day.

The U.N. conference poses a direct threat to America’s constitutionally protected individual right to keep and bear arms, said Alan Gottlieb, founder of the Second Amendment Foundation (SAF).

Gottlieb, who plans to attend the U.N. conference, is urging the U.S. government to reconsider its financial support for the United Nations, given its effort to undermine the Second Amendment.

“Had it not been for our tradition of private firearms ownership, our citizens might still be subjects of the queen,” Gottlieb said in a press release.

“Had it not been for America, all of Europe might be speaking German. Were America not the ‘great arsenal of democracy’ that President Franklin D. Roosevelt described in 1940, the world would be a far different place, and the sanctimonious bureaucrats at the U.N. might instead be working in labor camps.”

Gottlieb finds it troubling that as the United States celebrates its 230th birthday, global anti-gunners “want to create a binding international agreement that could supersede our laws and Constitution.

“We have done much for the U.N., and in return, the organization has hosted despots, tyrants and dictators whose record of human rights abuses, aggression and genocide speaks for itself. And now comes an attack on our Constitution, on our national holiday.

“America has always answered the call to help our international friends and neighbors,” Gottlieb observed, “but when our very way of life is attacked, maybe it is time to find more worthy endeavors for our material and financial support.”

At the United Nations’ first small arms conference in 2001, the United States rejected the idea of global gun control.

John Bolton – the current U.S. ambassador to the United Nations – in 2001 was serving as U.S. Undersecretary of State for Arms Control. He told the U.N. conference in 2001, “The United States believes that the responsible use of firearms is a legitimate aspect of national life.”

The president deserves commendation for acting responsibly on the occasion of a conflict in the Constitutional balance between federal branches. I think myself that a number of usually extremely perspicacious commentators on the Right went off half-cocked on this one.

Readers will recall that the FBI searched Rep. Jefferson’s office on Saturday and Sunday, and that the US Constitution, Article 1, Section 6, says:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

On Article 1, Section 6, Justice Story decidedly notes the importance of legislative immunity :

§ 856. The next part of the clause regards the privilege of the members from arrest, except for crimes, during their attendance at the sessions of congress, and their going to, and returning from them. This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange, indeed, if it were denied to the highest functionaries of the state in the discharge of their public duties. It belongs to congress in common with all other legislative bodies, which exist, or have existed in America, since its first settlement, under every variety of government; and it has immemorially constituted a privilege of both houses of the British parliament.

It seems absolutely indispensable for the just exercise of the legislative power in every nation, purporting to possess a free constitution of government; and it cannot be surrendered without endangering the public liberties, as well as the private independence of the members.

§ 857. This privilege from arrest, privileges them of course against all process, the disobedience to which is punishable by attachment of the person, such as a subpoena ad respondendum, aut testificandum, or a summons to serve on a jury; and (as has been justly observed) with reason, because a member has superior duties to perform in another place. When a representative is withdrawn from his seat by a summons, the people, whom he represents, lose their voice in debate and vote, as they do in his voluntary absence.

§ 858. The privilege of the peers of the British parliament to be free from arrest, in civil cases, is for ever sacred and inviolable. For other purposes, (as for common process,) it seems, that their privilege did not extend, but from the teste of the summons to parliament, and for twenty days before and after the session. But that period has now, as to all common process but arrest, been taken away by statute.

The privilege of the members of the house of commons from arrest is for forty days after every prorogation, and for forty days before the next appointed meeting, which in effect is as long, as the parliament lasts, it seldom being prorogued for more than four score days, at a time.

In case of a dissolution of parliament, it does not appear, that the privilege is confined to any precise time; the rule being, that the party is entitled to it for a convenient time, redeundo.

Even in Britain, Story notes, that Spirit of Modernity has tended to curtail the principle of legislative immunity short of the point where it might benefit the contents of Rep. Jefferson’s office.

§ 859. The privilege of members of parliament formerly extended also to their servants and goods, so that they could not be arrested. But so far, as it went to obstruct the ordinary course of justice in the British courts, it has since been restrained.

In the members of congress, the privilege is strictly personal, and does not extend to their servants or property.

Prominent Repubican Congressional leaders, including former Speaker of the House Newt Gingrich and current Speaker Dennis Hastert, have criticized the FBI’s conduct, and raised Constitutional objections.

Some of the most respected voices on the right side of the Blogosphere, including Glenn Reynolds, Michelle Malkin, and Roger L. Simon have objected to the position taken by the Speakers.

Our good friends need to pause for breath, and reflect seriously. The principle of separation of powers matters greatly. Congressional immunity from arrest matters tremendously. These principles of Republican government are infinitely more important than the successful conviction of one more corrupt democrat congressman. History demonstrates abundantly that we can survive the culture of political corruption of the democrat party. But free government could readily be brought to an end by the domination of the several branches of the federal government by a single branch.

In recent history, Congress has been far more guilty than the Executive of arrogating unauthorized powers to itself, and attacking the Executive on the basis of trumped up and exaggerated charges. But, it is certainly possible to imagine an aggressive ultra-liberal president trying to remove Congressional opposition by false allegations of corruption. Some of us believe that the House Majority Leader was successfuly removed by false charges lodged by a partisan county prosecutor in Texas.

It is on rare occasions like this, in which political leaders take principled positions, ignoring their own party’s interests, that our faith in our system of government and its institutions is justified and confirmed.

Read the US Constitution, Article I. Section 6 which states:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

I think it is impossible to avoid considering Congressional offices as part of the “going to and returning from the same” aspect of Congressional attendance. And the 18th century concept of a felony would apply to what were then commonly capital crimes of violence, not to ordinary bribery and corruption.

Of course, the determination of all this may, and should be left to the wisdom of Third Branch of the Federal Government, the Supreme Court. But, in the meantime, we should be proud that Republican Legislative leaders will defend the rights of their branch of government, even in the case of its least worthy member.