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.

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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?

Paul Moreno, at History News Network, discusses the left’s misuse of rights language as a means of disestablishing the natural rights enshrined in the US Constitution. It’s as if the left discovered a way to apply Gresham’s Economic Law to Constitutional Law: newly invented bogus rights inevitably quickly replace real natural rights in circulation.

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.”

Chicago Tribune:

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.

M.C. Escher, Drawing Hands, 1948.

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.

Randy Barnett, in today’s Wall Street Journal, relishes the results of Heller, and praises Justice Scalia’s work. I love his editorial’s title, which constitutes all by itself an absolutely devastating rejoinder to the jurisprudence of people like Justices Stevens and Breyer.

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.

Ilya Somin, at Volokh Conspiracy, advises Gun rights supporters not to rejoice too soon.

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.

While we’re waiting for the Supreme Court decision in Heller, Larrey Anderson, at American Thinker, has a bit of fun applying ordinary language philosophy to the oh-so-inscrutable meaning of the Second Amendment.

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.

Tom Goldstein at the SCOTUS blog:

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 head of the Brady Campaign told ABC News he expects to see the Supreme Court throw out DC’s handgun ban.

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.”

Mayor Bloomberg’s attorneys argue in their brief, and the Second Amendment may wind up excluded, being traded for a similar gag order on references to the National Rifle Association, the New York Sun reports.

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.

AP reports that the Justice Department has reminded Nancy Pelosi that the Executive Branch of the US Government has the ability to decline to enforce Congressional edicts which overstep the bounds of the separation of powers.

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.

This legal case raises intriguing issues of the meaning of the law in new technological contexts.

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.