SquareState - Constitution

Stupidest Republican of the Day: Calgary Ted Cruz, Senator from Texas

Zappatero — Thu, 14 Mar 2013 19:46:58 GMT

Barack Obama stupidly thought the Republican Tea Party Whackjob fever "would break" after he totally demolished Mitt Romney in the election. Well, he totally demolished Mitt and the fever didn't break.

Republican obstructionist behavior has continued at full force.

Republican determination to cause President Obama's economic policies to fail has continued apace.

Republican hate for the President and the Middle Class has continued unabated and will likely continue until the last history book is written about this man.

And, thank God for lazy bloggers like me, Republican Stupidity is on track to break every record they set in the last few years:

Sen. Ted Cruz (R-TX) battered Democrats with questions about whether they would support restrictions on the First or Fourth Amendments he claimed were similar to those an assault weapons ban would impose on the Second:
I pose to the senator from California [Sen. Diane Feinstein], would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would she consider it constitutional for congress to specify that the first amendment shall apply only to the following books and shall not apply to the books that congress has deemed outside the protection of the Bill of Rights?

But Sen. Charles Schumer (D-NY) obliterated his argument by noting the analogous actual restrictions on the actual First Amendment:
In reference to the question my colleague from Texas asked, would you limit books? Would you name specific books? Yeah. It's constitutional within the ambit of the First Amendment to eliminate child pornography. And we have lots of laws that are very explicit about that. Very explicit. That are constitutional, that have been upheld as constitutional.

Sen. Sheldon Whitehouse (D-RI) then dealt the final blow with a direct comparison between First and Second Amendment restrictions both intended to protect public safety:
It is hard to imagine that it would be a violation of the First Amendment for somebody to yell fire in a crowded theater but it's not a violation of the Second Amendment to prevent somebody from bringing a hundred-round magazine into a crowded theater in a Aurora, Colorado.

So, Ted Cruz, Texass Republican, born in Calgary, Canada, is an idiot. Presumably this is the primary reason Texans voted for him, because he is also a Harvard-trained lawyer (though not very well trained), which we know Republicans hate because that's exactly what Barack Obama is.

And if Schumer and Whitehouse's arguments didn't put ol' Ted to shame (our lawyers are better than their lawyers, no?), then let me add these two phrases from the amendments in question to try to show the difference:

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Second Amendment: 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

Boy, those guys were smart.

Republicans are not.

And Ted Cruz is their prime example........for today.

David and Goliath: Paladino Takes On Gessler

peacemonger — Mon, 09 Apr 2012 21:22:05 GMT

In a gutsy move by a relatively unknown Democratic candidate in a Republican stronghold, SD27 Candidate David Paladino issued this press release today. Paladino joined Colorado AFL-CIO Executive Director Mike Cerbo, Pro-choice Colorado, the Planned Parenthood of the Rocky Mountains Ballot Issue Committee, and Citizens for Integrity, in calling CO Secretary of State Scott Gessler's latest actions "unconstitutional".

If Paladino is this gutsy in his first political move, do Square State readers have a prediction for what might happen in his race against David Balmer?

State Senate Candidate David Paladino Joins Suit Against Rules Increasing Secrecy in Political Financing

Paladino calls new rules a welcome mat to political corruption
Centennial -- A lawsuit aimed at stopping Secretary of State Scott Gessler from vastly increasing secret political spending in Colorado was joined by CO Senate District 27 Democratic candidate David Paladino on Friday, April 6th.
Paladino, who is seeking his first term in office to represent an area that covers Centennial, called the new rules "an insult and a welcome mat to potential corruption by rolling back campaign finance disclosures and preventing Colorado voters from knowing who is funding political campaigns, a right we all have today. It will bring political spending in Colorado to new lows."
Under these new rules, Gessler says that a county or city political party where there's home rule may now funnel money to its state party without reporting who donated the funds, no matter how much. He also loosens the restrictions on when a political party, issue committee or other political organization must report contributions and expenditures, making it possible for special interests to avoid disclosure. Hundreds of thousands of dollars in political spending would be obscured as a result.
"Colorado's constitution has long protected voters and citizens from back-room funding of local candidates and campaigns," said Paladino, "but now the Secretary of State wants to turn the tables around so that millions of dollars could be potentially funneled into political use without the public knowing about it.
"This ignores our state's constitutional protections against secret money in politics and it violates every sense that we have that political money has to be out in the open so we know who is being supported by what interests, and how. Voters deserve to know that."
The legal action was filed in Denver District Court. Included as plaintiffs along with Paladino are Mike Cerbo, Colorado AFL-CIO executive director, Pro-Choice Colorado, the PPRM Ballot Issue Committee, and Citizens for Integrity, Inc. Colorado Common Cause filed a similar suit on Friday.
The court is being asked to stay rules that Gessler created in March because the Secretary of State overstepped the authority and legal bounds of his office. It also says that the rules are in violation of Colorado's clearly-defined constitutional requirements for political contributions and spending.
"It's been a long-time right for voters in our state to know who is backing whom and what," said Paladino, "and Scott Gessler has no right to change that."
###

Right-Wing New-Speak

Steve Harvey — Mon, 12 Mar 2012 03:12:11 GMT

(Cross-posted on http://coloradoconfluence.com/)

It's not possible to fully understand American politics without understanding the language that is employed in political discourse, and how the terms are defined by those who use them. Interestingly, one American political faction has come to define all terms as precisely the opposite of what the rest of us have long understood them to mean.
Whereas some people, for instance, think that the word "liberty" refers to a lack of infringement on freedom of thought and action, and lack of intrusion on privacy, careful observation of how those on the Right use it reveals that we have all been mistaken all these years. Apparently, it really means:

1) allowing members of the dominant race, ethnicity, religion, and sex to impose their will on all others and to protect the privileges inherited from a history of oppressing and exploiting others;

2) facilitating the displacement of political power from the people, through their elected representatives, to private corporations unhindered by democratic processes or public accountability;

3) ensuring that individuals are as unprotected as possible from the greatest threats to their well-being, posed by organized others in service to an obscenely inequitable distribution of wealth and opportunity, while simultaneously ensuring that we react as vindictively and counterproductively as possible toward the impoverished and destitute;

4) fetishizing both privately owned instruments of violence and nationally organized acts of violence (as long as the perpetrator of the latter is one's own nation); and

5) insisting on policies that have led to the incarceration of the highest percentage of any national population, and the highest absolute number of people, of any nation on Earth, bar none (making the United States, in the most literal sense, the least free nation on Earth).

More specifically, "liberty," apparently, is a value which dictates that

1) Adherents of Islam who have engaged in no crimes nor done anything to draw suspicion should be placed under covert surveillance and have dossiers dedicated to them in order to ensure that any crimes they might commit in the future are pre-empted (otherwise known as "Ethnically and Religiously Exclusive Liberty," or, more simply, "Police State Liberty");

2) Impoverished people who migrate toward greater opportunity without governmental permission, or the children of such people who migrated with them as infants, should be rounded up and placed in detention centers, often subjected to poorly maintained facilities and poor treatment, until such time as they can be forcibly removed from the "land of opportunity" to which they migrated (Otherwise known as "Geographically Exclusive Liberty," or "Fortress America Liberty," or "'If You're Lucky' Liberty");

3) Women should be reduced to the legal status of human incubators, with no rights over their own bodies once they become impregnated, whether by their own choice or by force (otherwise known as "'You're a Toaster' Liberty"); and

4) People who are sexually attracted to people of the same sex should be denied the kinds of legally and socially defined relationships that those who are attracted to people of the opposite sex enjoy, because it as an affront to the ideal of "liberty" not to discriminate against those who are different from you in any significant way (otherwise known as "'Liberty as long as we white Christian heterosexuals are okay with how you use it, but otherwise, not so much' Liberty").

This imaginative definition of "liberty" is reminiscent of how this political faction's historical predecessors used the word. For instance, John C. Calhoun, the famous Antebellum Southern politician, used the word "liberty" to refer to the freedom to own slaves, and "minority" to refer to those who believed that they had an inalienable right to own slaves, and was very strongly committed to protecting the rights and liberties of that embattled minority. In other words, to these neo-nullifcation-doctrine adherents, liberty means "my freedom to screw everyone else."

Similarly, the venerable phrase "United States Constitution," which to most of us means that document drafted by a group of very intelligent but historically contextualized propertied white men in 1787 in order to strengthen the federal government and overcome the disintegrative dysfunctionality of The Articles of Confederation which had preceded it, and which is the foundation of our rule of law, in reality refers to the complete disregard for the actual provisions of that document or to the rule of law established in accordance with those provisions. Rather, it refers to a strange, incoherent combination of Fundamentalist Christian theocracy, corporate oligarchy, and indifference to gross social injustices produced by current and historical distributions of privilege disproportionately favoring the racial, religious, ethnic and sexual orientation categories to which those who adhere to this imaginative interpretation of the phrase "United States Constitution" coincidentally belong.

For instance, Article I, Section 8, Clause 1, which grants Congress the power to tax and spend in service to the general welfare, in reality prohibits Congress from taxing and spending in service to the general welfare, the rest of us failing to understand that the Founding Fathers meant that Clause tongue-in-cheek, and that a literal, non-judicial-activist reading of the Constitution requires us to realize that it means the exact opposite of what it says.

Or, the First Amendment, which protects the right of each to adhere to and practice the religion of their choice, and ensures that the government does not favor any religion over any other, really means that the government must assiduously favor Christianity over all other religions, and decline to extend the same permission and accommodation to, for instance, adherents of Islam practicing their religion, because to do so would be to force good, all-American white Christians to endure people of other religions practicing non-Judeo-Christian religions in "our" country (not "their" country, because, of course, if they're Muslim, then they're not American..., right?).

"Liberty," in Right-Wing New-Speak, means indifference, injustice, predation, violence and mass incarceration. "Freedom of religion" means Christian Theocracy and intolerance of any disfavored religions. The provision granting Congress the authority to tax and spend for the general welfare means that Congress is prohibited from taxing and spending for the general welfare. You almost have to admire such an impressive commitment to the complete inversion of reality.

So, if you find yourself driving a car with a right-wing ideologue riding shot-gun, and he or she shouts in a panic "Floor it!" ...don't. Hit the brakes instead. The wayward gay Muslim Hispanic pedestrian who wandered into your path will thank you for it.

BREAKING: Newt says arrest Scalia, Thomas

Zappatero — Sun, 18 Dec 2011 19:54:37 GMT

So Newt Gingrich, in his bottomless pit of anti-democratic and anti-labor ideas came up with this one:

The former House Speaker held a half-hour phone call on Saturday during which he pledged to abolish courts (how Kenyan and anti-colonial of him.) and eliminated activist judges he believed were either outside the mainstream or infringing too deeply on the commander in chief's authority.
On Sunday, he followed that up by saying he would be willing to arrest a judge who he thought was out of line.
"If you had to," he said on CBS's "Face the Nation" when asked if he would send a Capitol Hill police officer to round up a judge, "or you would instruct the Justice Department to send the U.S. Marshal."

The U.S. Constitution disagrees with the "historian"/lobbyist.

Article I, Section. 2.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Article I, Section 3.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Article I, Section. 4.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Justices Clarence Thomas and Antonin Scalia are the only ones that still serve from the Court that interrupted the 2000 Presidential election with a misguided, political, anti-Constitutional, and anti-Democratic decision:

On December 8, 2000, the Florida Supreme Court ordered a manual recount of a substantial portion of these uncounted ballots.
The rest is history.
On December 9, 2000, five members of the U.S. Supreme Court stunned the nation by halting the Florida manual recount. Justices Rehnquist, Scalia, Thomas, O'Connor, and Kennedy claimed they wished to review its constitutional validity.
With two rounds of Florida election litigation behind them and the presidency hanging in the balance, Americans of all political stripes trusted the U.S. Supreme Court to provide for a satisfactory means of assessing the will of Florida's voters.
When night fell on December 12, that faith was betrayed.

To conclude, and the logic is airtight here: if Newt was the idea man everyone says he is, then he will hold to this idea and enunciate the policies it would entail. He isn't; he won't.

If he was principled, and held to (any of) his wildly varying principles for more than a month then he would back up his idea with the most obvious example of activist judges in the last 25 years and call the the arrest of Scalia and Thomas. He isn't. He won't.

He's an idea man full of dumb ideas. Anyone who thinks he'd be a good president is a fool. Anyone who thinks he has principles should ask him to follow up just one more time and tell us which judges he'd arrest. That would show everyone just how anti-democratic and anti-Constitutional the Newt is. And it would confirm that when Republicans are calling Democrats names and accusing them of something, it's usually the Republicans who are doing it. And the fair and balanced media that's reporting it.

Hitler Holds News Conference, Blames Balanced Budget Amendment For U.S. Defeat

fake consultant — Tue, 26 Jul 2011 16:03:01 GMT

(FNS - Washington, New Germany, April 17, 1947) America's new Führer, Adolf Hitler, announced today that his official War History would in fact acknowledge that one of the biggest contributing factors to the defeat of the Allies was the insistence of the former United States of America on sticking to its Balanced Budget Amendment, which left them unable to fund the wartime conversion of the US economy for the benefit of the Alliance.

"All those ideas Mr. Roosevelt spoke of", said Hitler, "Lend-Lease, modular shipbuilding, War Bonds, secret weapons...in the end, all of them were just words, since the Americans' Congress was never willing to allow the country to fully fund its war effort."
As has been previously disclosed, Waffen SS historians have already located caches of documents in Washington describing plans to fund a massive military expansion in the former United States by selling War Bonds.

These debt instruments would have allowed the Roosevelt Administration to spend up to 40% of the Gross Domestic Product of the former Nation in defending itself, the former United Kingdom, and other nations against the Fatherland, but for reasons that are still not well understood Conservative politicians demanded that the former US Government never "take on debt for outsiders", or, in the words of Mae Cadoodie, leader of the American Tea Party movement, "Never invite a foreign entanglement that raises our taxes".

Had the Americans been allowed to sell War Bonds, or to raise taxes to fund the War, it is estimated that they could have provided tens of thousands of aircraft, millions of military vehicles, and hundreds of ships, but the Balanced Budget Amendment prevented any of that.

This represents the end of a series of political arguments that had been taking place since the 1930s, when some American economists were suggesting that a new idea called "deficit spending" could be helpful in bringing the former USA out of the Great Depression; at that time the Roosevelt Administration was unable to establish agencies such as the Work Projects Administration, which would have built public works projects throughout the USA in an effort to revive the moribund economy.

Mae Cadoodie and others fought back successfully against these ideas, pointing out that the last thing the US economy needed in a bad economy was new taxes; they made the same arguments when the Roosevelt Administration first proposed Lend-Lease as a war emergency measure.

"We cannot inflict punishing new taxes on American industry at this fragile time in our recovery" Cadoodie said in a famous speech in 1939, "and if the market is really there for this military materiel, if it's not just some boondoggle manufactured by Roosevelt to take money out of the pockets of the American people, then I'm sure the British will be able to find the funding they need from the markets or from charitable donations".

Cadoodie was unavailable for comment, as she and most other former American politicians are still serving on the Eastern Front, and will be for the foreseeable future.

In a related story, the conversion of the remainder of the American industrial base is underway for the fight against the Russians, and millions of otherwise unemployed Americans are being drafted into the military services in preparation for the final assault.

Jethro Bodineism Watch - Rand Paul Edition

Bill Egnor AKA Something The Dog Said — Wed, 01 Jun 2011 13:53:19 GMT

To my great chagrin no one in the national media has picked up the Bodineism meme, but they are starting to get the picture that there are some elected officials, particularly Republican elected officials, are about as dumb as sack of hammers.

The particular Jethro that I am talking about today is Sen. Rand Paul of Kentucky. Of all the folks that I have compared to Jethro Bodine, Sen. Paul is probably the closet to the mark. By all accounts he is a pretty genial guy with a good smile and a nice manner. He is also so clueless as to be a text book (given that all books are printed in text, wouldn't that make them all text books?) example of self-satire.

Most recently Sen. Paul (gods greater and lesser that gives me chills just writing it, ugh) has managed to trample the 1st Amendment with his "ideas". Some of us on the Left side of the Blogasphere were more than a little happy that he was holding up the PATRIOT act renewal, by wanting to insert some amendments that would lessen the ability of the government to spy on its own citizens.

That was a good thing, but it does not mean that he was doing it from a deep understanding of the Constitution. You see after his ploy failed he went on Sean "The Manatee" Hannity's radio show and said the following:

I'm not for profiling people on the color of their skin, or on their religion, but I would take into account where they've been traveling and perhaps, you might have to indirectly take into account whether or not they've been going to radical political speeches by religious leaders. It wouldn't be that they are Islamic. But if someone is attending speeches from someone who is promoting the violent overthrow of our government, that's really an offense that we should be going after - they should be deported or put in prison.

Peel your palm off of your face. Yes, Sen. Paul, a man sworn to uphold the Constitution, just like every other elected official, seems to have an abject failure to understand the meaning, intent and workings of the 1st Amendment.

Since good ol' Sen "Jethro" Paul seems to have forgotten with the 1st Amendment says let me remind all of you:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Where the junior (so very, very junior) Senator form Kentucky gets into hot water is the part that says "right of the people to peaceably assemble". It does not matter what is said when they assemble, as long as the assembly is peaceful it is constitutional and it would be a violation of the Constitution to have any law that would deport or imprison people who attend such a gathering.

It does not matter if it is Billy Graham or Malcolm X or Britney Spears, if you are going to a gathering and the speaker does not say something to the affect of "Let's burn down City Hall, right now!" it is inside the protections of the free speech and the peaceful assembly grant of the 1st Amendment.

You might think that a supposedly Libertarian like Paul would be zealous in defending all rights, especially the ones that limit the ability of the government to prohibit actions of citizens. Instead this Jethro of a Senator wants to expand the ability of the government to arrest and imprison those who just attend speeches that are inflammatory.

This is not just dumb on a constitutional level either. It is a political hot potato on the Right. There are more than a few rightwing groups that preach the violent overthrow of the United States. The KKK has been known to do it, so have the so-called Sovereign Citizens groups. Militias pop up all the time with this as their main goal (though they never get close to it) and then there are the Dominationist groups that want to make the United States a theocracy and they are not shy about the idea of violence to achieve it either.

If Sen. Paul had his way all these groups would be in big trouble and so would anyone attending one of their rallies or speeches. These are groups that are part of his base. I know that is strong accusation, but if you want some back up, take a look at the efforts of Stromfront, a White Supremacist group to raise money for Paul's election campaign. You can find it at this link.

One has to wonder how far Sen. Paul really wants to take this? After all is there a lot of difference between taking violent racists money and listening to a speech advocating overthrowing the Obama Administration? Should we be putting a sitting United States Senator on the No Fly List or warming up a jail cell for him?

Of course Sen. Paul does not think this should apply to him. In fact it is really just a smoke screen for Islamaphobia. He is clearly thinking only of dark skinned men who happen to be Muslims for this special exception to the Constitution, but again being a Jethro he does not get that the Constitution applies to everyone.

Conclusive diagnosis of Bodineism is a difficult thing. There is no blood test or even MRI imaging. However when folks like Jon Chait and Alex Pareenee say things like "Rand Paul, Americas Dumbest Senator" and "He's not only an ideological fanatic, he's not even a terribly bright one." We can be relatively sure that Sen. Paul is a Bodineism suffer.

It is amazing to me that people even listen to the rube at all. Yes he is one of the more powerful people in the nation, since he is one of only 100 senators. Still when someone is so wrong so often on so many issues we have to say "Okay, Jethro, why don't you take a dip in the cement pond?"

I don't know about you, but if I were a Libertarian I'd be hanging my head in shame that this is the most high profile member of your movement. Someone that thinks the government giving doctors money to treat people is enslavement, someone who thinks that a pretty crappy writer from the 1950's has the last word on a problem that was not even recognized when she wrote and someone who does not understand the basic rights that Libertarians are supposed to be all about.

Having Sen. Paul as a standard bearer for your cause is about the same as having the original Jethro Bodine as your pilot; it'll be a ride with a lot of attention paid to it, but in the end you are likely to wind up in a crater.

The floor is yours.

Breaking News: Eric Cantor And Jethro Bodine Separated At Birth!

Bill Egnor AKA Something The Dog Said — Thu, 31 Mar 2011 13:30:40 GMT

Bondeism started as a way for me to highlight the nitwittery of the Republicans in the 111th Congress. They say and do really gob smacking things and I post about comparing them to that gormless but loveable hillbilly Jethro Bodine. But I have to wonder if I have actually, through some unintended and accidental sorcery called this disease into reality (I'm probably taking too much on myself with that, still)?

It is one thing to misinterpret the Constitution, it is open for interpretation and people can be honestly wrong, but it is quit another for a Member of Congress in a leadership position to propose action that is completely outside the boundaries of the Constitution. Which is exactly what Eric Cantor is doing.

He is proposing and will force the House to bring to a vote a measure he is calling the "Government Shutdown Prevention Act". What this Act will say is that if the Senate does not pass a budget measure by April 6th, then HR 1, the Republicans draconian and job slaughtering bill (which, by the way the Senate has already voted down) will become the law of the land.

I hear you all going "But, but, but... Doesn't the Senate have to pass a bill and the President sign it for it to be law?" Why, yes, yes it does. It seems that the raven haired, square jawed Virginia Republican who is the House Majority Leader does not understand how the body he has been part of for a decade now works.

If there were an "All Time Jethro Bodineism Award" it is certain that Rep. Cantor would be earning himself a place in the nominees. It is easy to dismiss this as insane and a stunt, but I see a bigger picture emerging among Republicans nation wide.

The lawless behavior of Gov. Scott Walker in Wisconsin has shown that he and his Republicans have a shocking disregard for the laws of their state. They have broken and bent the rules to pass their union busting bill and have even defied a court order in the implementation of the law.
In Michigan Gov. Rick Snyder has proposed a law that would allow his office to declare "financial marshal law" and then appoint and unelected business manager to take over a municipality, and go as far as dissolving the elected government of that city or town, all without any input from the voters there in.

Combine this with Rep Eric "Jethro For Life" Cantor's plan, which he proposes as "getting serious about the budget impasse" and you see something very disturbing; a political party that not only does not understand the Constitution but is actively trying to thwart it at every turn.

It was one of the things that we Liberals warned about in the days of the criminal Bush administration, that if the flagrant disregard for the Constitution of that administration was allowed to continue it would degrade the affects of our founding document beyond just those instances.

The abject failure of the Obama administration to investigate, and where appropriate prosecute the offenders had proven that this slippery slope is indeed real. I completely understand that it would have been and continues to be politically difficult to follow the rule of law in this case; however this failure is not without consequences.

Without the firm backstop of Constitutionality, and the enforcement of laws against heinous crimes like torture and indefinite detention we open ourselves up to debate exactly what every right and responsibility in the Constitution means. The Conservative movement has opened a Pandora's Box and is more than happy to start taking bed rock assumptions apart now that we do not have clarity on issues as black and white as torture.

From Birth Right Citizenship, to how Senators are elected, to EPA to collective bargaining rights they are ready to ignore centuries of progress and try to take our nation back to a time when we were, frankly less free. It is of course, ironic that these fools wrap themselves in the mantle of the Framers of the Constitution. It is a good thing I don't believe in an after life, else I would have to endure the image of Franklin, Jefferson and Addams puking their guts out at the mockery these asshats are making of their nation.

One thing that we can do is to start to push the media not to give a platform to the Jethro's. Rep. Cantor is protected in his right to say any damned fool thing he likes, but that does not mean it should go unchallenged.

Take a couple of minutes to write a letter to your local newspaper about the fact that one of the top Republicans is going to waste the time of the Peoples House to vote on a bill that will never be law and acts like the House has more power than it does.

The floor is yours.

On Monday Morning Philosophy, Or, Founders Tell America: "You Figure It Out"

fake consultant — Tue, 22 Mar 2011 19:05:04 GMT

In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing "liturgical foundation" to the adherents of the point of view that the Constitution is like The Bible: that it's somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent Of The Founders, that summer in Philadelphia...was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent...was that we work it out for ourselves as we go along?

"...you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal..."
--From the song "Gasoline", by Sheryl Crow

The reason this is coming up today is because I've been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.

To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it's to be done at all, it's something that should be left to the States. (The 10th Amendment is used to reinforce this point.)

A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no "foreign entanglements" or National Banks...a time when men of the soil worked their farms with no fear of Debt or The Taxman....a time when government worked best by using local wisdom to deal with local problems.

In other words, we're basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787-and for those who don't recall, Hamilton won, which reflects the reality that we don't all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.

To reinforce their arguments "fundamentalists" fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today's problems would be found by simply allowing the Original Intent to shine through.

I'm here to tell you that couldn't be more wrong-and to prove my point you need only consider the Civil War.

Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.

Those Founders who supported ending that "peculiar institution" were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by "the various States" there were compromises made, including the 3/5ths Compromise and Article Four's requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.

The Intent Of The Founders, on the question of slavery, was to let time work it out.

The same kind of "let time work it out" thinking led us to Article 1, Section 8, and the "general welfare" clause.

Congress is empowered to enact legislation that provides for the "common defense and general welfare of the United States"...but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, "unclear phrasing").

Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders' Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.

We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to "accept" Federal laws...or not.

Over time, of course, we've come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop-and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would "find their center".

The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we've seen fit to change that-and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.

Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?

The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn't really exist as an issue in 1789.

I'm guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)-but they did put that "general welfare" clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.

The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government's powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.

Can you guess why?

That's right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of "leave things open" and let time work it out.

Here's an example of how one of the Founders tried to tried to kill the "Original Intent" argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he's also credited with being the principal author of the document, possibly because his were the best notes).

Why did he do that? It appears to be because that Founder's Intent was to make the Constitution's words stand on their own, without his notes to frame the debate-and in fact the document had been in force for almost 50 years before those notes saw the light of day.

The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you'll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders-and all of that brings us right back to Social Security.

It is true that the Constitution, as it was written in 1789, does not contain the words "you may establish Social Security"-but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.

Congress, acting with the authority to provide for the general welfare, took Roosevelt's proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here's part of what they had to say:

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.

Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it's to kick a problem down the road so that something can get done today.

The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful-and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn't change that even one little bit.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.

Romer's New Ad

Fong — Mon, 21 Mar 2011 17:36:08 GMT

When I googled youtube Chris Romer, the first several hits are from stoners who hate Romer for saying "there's this theory amidst that 'oh, don't worry, we're in the Constitution, we're all gonna be alright.' Let me assure you, that's not how the way the law works." They love that quote and I love them for loving it. Unlike myself, those stoners would probably take Michael Hancock (who said "marijuana is a gateway drug that leads to heavier drug use") over Romer.

Well here's his shiny new ad full of talk about education. I guess he wants to talk about it since he and Michael Hancock were the two candidates who said they approve of unconstitutional, undemocratic Mayoral takeover of Denver Public Schools should "DPS move in the wrong direction" according education privatization organizations.

Enjoy:

Tears for Fears: Speaker Boehner skips Chinese State Dinner, disses Constitution

Zappatero — Mon, 17 Jan 2011 21:31:37 GMT

Good:

On the heels of renewed calls for bipartisanship and toned-down political rhetoric, Boehner is saying "thanks, but no thanks" to another offer to appear at an event with the president - Wednesday's White House state dinner honoring the Chinese President Hu Jintao.

Speaker Boo-boo Boehner would probably burst into tears if he did attend, which would show the Capitalist-Chinese President that all the talk of how Republicans are going to get tough with our national debt is just that: talk.

So I am glad The Speaker isn't going to be at the dinner. It (should) show all the Bipartisan freaks in DC that the Republicans want none of this New Bipartisanship™.

It definitely shows me that John Boehner is not ready for prime time and is not ready to fulfill his Constitutional Duties, something the Chinese president has probably known for a very long time.
(coupla style edits. - z)

Kruathammer And Conservative "Constitutionalism"

Bill Egnor AKA Something The Dog Said — Fri, 07 Jan 2011 14:26:25 GMT

Is there anyone more disingenuous than Charles Kruathammer? In his column in the Washington Post today he goes on and on about what he perceives as the new "constitutionalism" that is coming to the Republican controlled House of Representatives. He gleefully compares it to constitutional "originalism" which insists that judges look at the Constitution from the point of view of those who wrote the various amendments.
Originalism or strict construction has always been a scam. It is an attempt to over turn stare decisis or "settled law" by saying that all the precedents that lead to our current understanding of the law were wrong if they don't match the conservative point of view. Krauthammer is all a twitter with the idea that Republicans will now start doing the same kind of thing with legislation under the stunt House rule which requires that all legislation have included in it a bit of boiler-plate that explains why it is in line with the Constitution.

Skeletors stunt double believes that this will lead to a new era of restraint and minimal government. The problem with that is there is exactly no evidence that the Conservatives and Republicans have anything like restraint in their political make up. After all this is the party that grew the cost of government by more than any other in history under the Bush administration. They spent money on tax cuts for the wealthy even though it did not generate any jobs and wish to continue to do the same. They are the party that wants, as a long standing plank in their platform, to make abortion illegal, which puts the government in the bedrooms and doctors office of every women in the nation.

Kruathammer argues that this will make us more free he does not look at the fact that while conservatives and Republicans talk about this as a step back towards freedom, this is the party that not only started wireless warrant tapping and indefinite detention of accused terrorists, even those who were citizens and arrested in the United States, they are the Party that did everything they could to protect those who ordered and carried out torture.

The reality is that all Mr. Krauthammer cares about is cutting spending on entitlements and rolling back regulations. These are the burning issues of freedom that he wants to see addressed, not the health of the nation or the fact that there is so much income disparity.

This idea that conservatives and the nation should have absolute fealty to the Constitution as it was interpreted at the time of each Article and Amendments writing, is ridiculous. The Constitution itself provides for changes and those changes have from time to time been reversed at well. The best example of is the 18th Amendment which prohibited the production and sale of alcohol. Which should we be faithful too, the Temperance movement or the folks who decided that it was a citizens right to consume the intoxicant of his or her choice?

Do any us really want to go back to the way things where in this country in the past? Do we want a time when State legislators elected Senators instead of the people? Do we want women not to have the vote? These are ideas that Kruathammer's Tea Party conservatives have floated. All my life Reagan conservatives talked about ideas that would return us to an idealized 1950's (always missing out that in the '50s the tax rates for the top earners were 90%) now it seems they want to go back all the way to the 19th Century or beyond.

And where does this constitutional fealty play into the ending of birth-right citizenship? The anti-immigrant movement is hot and heavy to change one of the 14th Amendment, which was put in place to be sure that slaves which were born here would not be denied their citizenship. This would take us back the 1870's.

Krauthammer is not really interested in the ideas of equality under the law for all citizens. No, he and his idea of constitutionalism are looking to make sure that the privileged stay privileged and that the little people have as little recourse as possible. He is counting on the low information voters to like the idea of sticking the Constitution while doing the people elected on this platform do everything they can to betray the ideals of that document.

Progress and freedom require adjustments. The Framers never intended out Constitution to be a straitjacket. They were all about the people, through their institutions of the Legislature, the Executive Branch and the Judicial Branch, to be able to pick the way they want to be governed and by what laws. We must view the Constitution as living document that is in place to help us to the goal of freedom and the general welfare of the nation, anything else is assent to the tyranny of the past.

In trying to take us to mythical past, the idea of constitutionalism as desired by Kruathammer is just a path to a dark and unhappy future where power is not balanced by law, but corporations and the wealthy can blatantly screw the rest of us and have us believe that we are free and equal. That is not a future I will accept.

The floor is yours.

Bullshit Artists

Zappatero — Thu, 06 Jan 2011 19:07:40 GMT

So the big Reading of The United States Constitution was verbally abridged by House Republicans who felt some parts of this great document were not worth the effort, or maybe held some truths that were a little too self-evident.

Are we surprised that this is just one more bullshit show by Republicans who mouth the right stuff but fail when the principle is just a bit too much for them to stomach?

Thomas Jefferson would spit on these highly proficient bullshit artists.
(added a couple of edits-z)

Apes Reading The Constitution

Bill Egnor AKA Something The Dog Said — Mon, 06 Dec 2010 14:15:15 GMT

There is a line in "A Fish Called Wanda" that comes to mind when I think about Tea Party Conservatives and many of what passes for main-line Republicans these days. Wanda if talking to Otto and he says "Apes don't read philosophy" Wanda replies "Yes, they do, Otto, they just don't understand it". That is where I am with Tea Partiers and the Constitution.

Sure they claim to have fealty to it, in that invariant way that some believers claim about the bible, but what good does it do you to be faithful to something you clearly don't understand? Take the soon to be Governor of Maine, Paul LePage. He was quoted recently as saying:

"I am going to be sitting with our attorney general and ask him to join the (health care reform) lawsuit against the federal government," he said, adding he just learned that if 35 states join the suit, the law "dies, automatically." Twenty states so far have joined the suit, filed in federal court in Florida, to repeal the provision in health care reform law that requires individuals to purchase health insurance.

Yeah, that's right, this stalwart defender of states rights thinks that just because 35 out of 50 states file a law suit against a federal law it "automatically dies". Sorry to tell you Governor Elect but there is nothing in the Constitution or the ACA that triggers the death of a law just because states file spurious law suits. Anyone with even a basic understanding of politics and the law would grasp why that could not be the case. Still that does not matter the "constitutional faithful".

This has been one of the most frustrating thing about the rise of the Tea Party and the idea of case law nullification. If you look at the statements by so-called strict constructionists you'll often find them telling you the Constitution does not say X. Which is likely to be true in the literal sense that it is not written directly in the Constitution; the thing is that there is often 200 years of case law which bring our commonly understood rights and protections into focus.

That is the purpose of the Supreme Court, to adjudicate what is within Constitutional boundaries and what is outside. Like all ideas tested over time and evolving in a society they have changed from what the people who wrote them may or may not have intended. In fact this is a feature not a bug, as the Framers never intended their words to be a set of shackles to bind unborn generations to their way of thinking. The Framers wanted to be able to form and run a nation as they saw fit and would never have wanted to keep their cold dead hands on the tiller of the ship of state if it were against the overall will of the people. It is clear in the mechanisms that they wrote into the Constitution for its alteration.

Yet the so-called "defenders of the constitution" on the Right would think to impose an idea that would have been anathema to the Framers. There has been far too much talk from asshats like Gov. Rick Perry of Texas on the idea of nullification. The premise is that even though the Constitution itself claims that Federal law will always trump State law (it is called the Supremacy Clause for a good reason) the Tenth Amendment is more important when it says that all rights not reserved by to the Federal government devolve to the states.

What these yahoo's miss is that all it takes for the Federal government to have jurisdiction is for it to decide that it has it. Some of this confusion probably comes from the meme that the Conservatives have managed to ingrain in many of their ranks, that the Federal Government is somehow separate from the states, that it is imposed instead of voted in and capable of being voted out.

This misreading of the Constitution goes further. Everyone's favorite lunatic Christine O'Donnell was correct when she says that the separation of church and state is not specifically written into the Constitution, those words do not appear there. However for 200 plus years (including all of the years that the Framers lived and ran their new government) it has been understood that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

Means just that; there shall be no state sanction for any religion or the prohibition on the practice of a religion.

All of this leads us to the where we are today, with a large portion of elected Federal officials who have taken and oath to defend and uphold a document they don't understand. Worse they have been encouraged to ignore the case law stemming from the document and just focus on the often archaic way that the early amendments were written.

There is value in trying to understand what the Framers intended, after all they did set up our form of governance, but not at the cost of being able to build on those traditions and adjust them if it is the will of the people. The way our legal and legislative system works is an extended work in progress. It is, and always has been, a kludge, a work around to move us forward with the best of intentions, knowing that it is imperfect and impermanent, and will always have to be adjusted in the future to deal with the facts on the ground at the time.

This is what makes it great. The ability to have that uncertainty, that wiggle room which allows us to try goofy things like prohibition of alcohol and then to decide they are goofy and rectify them.

Perhaps it is some form of future shock which has Tea Partiers and other Conservatives scrambling to lock down the future by retreating to a mythical past. Perhaps is it the virus of Authoritarianism infecting our body politic. Whatever the case it is clear that we will have apes who think they understand the Constitution telling us what they think it means and trying to govern that way for some time to come.

The floor is yours.

Justice Scalia Says 17th Amendment Was Mistake For States Rights

Bill Egnor AKA Something The Dog Said — Tue, 16 Nov 2010 13:50:31 GMT

There is nothing that the conservative bend of mind can not screw up and screw up badly. The quest by the Religious Right to overturn Roe v Wade is central example of this. Even though the nation is equally split (with a general slight edge to allowing women to control their own reproduction) the Religious Right has been pushing to have more and more conservative Justices appointed to the High Court. The goal being to finally get the five votes necessary stick a finger in the eye of more than half the nation and remove a woman's right to choose when and if she would have a child.

This opened the door to other conservative interests and saddled us with Justices that talk about nonsense like "original intent". I've written about how this is really a veiled attempt at case law nullification, as going to the original intent allows Justices who are so inclined to ignore stare decisis (settled law) and take a weed whacker to our understanding of the Constitution based solely on their impression of what the original intent of the Framers was.

All this leads us the recent escapades of the most conservative members of the Court. It is widely reported that Chief Justice Roberts was a headliner at a fund raiser for the American Standard, an ultra conservative magazine where many of the tropes which infect this nation from the right are born and repeated ad nauseam.

However it is the remarks of arch-conservative Justice Antonin Scalia which have me despairing for our nation today. According to Think Progress, last Friday evening Justice Scalia said:

"There's very little that I would change," he said. "I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously."
That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.
"We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century. So, don't mess with the Constitution."

On the one hand there is something to be said about no capriciously changing you constitution. We have seen the knots it can tie state government in and the way that it allows a bigoted majority to deny rights to those they are bigoted against in the way the initiative process has been used to deny gay citizens marriage rights.

On the other, though, this idea that we are some how less than what the Framers wanted because we decided to put the election of Senators directly in the hands of the people (by means of the 17th Amendment) instead of leaving it up to the State Legislatures to elect Senators.

There is also the really troubling use of the dog whistle phrase "states rights" in Justice Scalia's statement. States rights have long been a calling card for racist resistance to Civil Rights Era laws. The argument goes that by insisting that African American kids be integrated with white kids the states are having their rights under the 10th Amendment trampled. To hear them coming from a Supreme Court Justice, even a hyper-conservative like Justice Scalia, is nearly frightening.

We've seen other conservatives talk about repealing the 17th Amendment. Gov. Rick Perry of Texas, well known for his flirting with the idea of secession, has spoken positively of the idea, as well as Senator Elect Mike Lee of Utah (though I am betting that by the time Sen. Elect Lee is up for reelection he will have changed his mind).

If you think the level of out of state influence is high now in Senatorial elections, just try to imagine what it would be like if legislatures once again had the control who would represent their state for six years at a time. Just from a point of view of cost it will always be much cheaper for business or other interests to convince 100 or less people to support their candidate rather than the hundreds of thousands or even millions who currently elect Senators.

The opportunity for corruption would be massive and it was back when this was the standard way that Senators were elected. This is one of the problems with the whole idea of original intent. The Amendments to the Constitution were put in place to solve problems that cropped up from the time of the founding of our nation. Even the Bill of Rights was a rewrite from the original Articles of Confederation.

The first ten amendments were added by the Framers to clarify and extend the rights they thought they had nailed down in the Articles. The years between the writing of the Articles and the Constitution showed that there were issues that needed more and specific attention. The Amendments since then have all been in the same vein, a response to events that had occurred in the time since the Framers ratified the Constitution.

Perhaps I am being too kind to Justice Scalia and those who want to repeal the 17th Amendment, but maybe they are unaware of the way things were before we changed to the popular election of Senators. The change was in response to the feeling that Senators were not really responsive to the will of the people but only the will of the powerful in their states, thus perverting the idea of democracy. I hope that this is the case rather than the other option which is they know and want the nation to return to a time when it was only the rich and powerful who had any type of serious voice in electing 100 of the most powerful people in the nation.

That we are seeing a Supreme Court where Justices are willing to openly support conservative organizations and talk in racist dog whistle phrases makes me tend to believe that the latter is truer than the former.

This is what we have come to by allowing conservatives to stock our highest court (and lots of the lower courts as well) with doctrinaire conservatives. They have not achieved their goal of making abortion illegal but they have managed to create a Court where politics is the order of the day rather than the interpretation of the law as it applies to the problems of the nation today.

The Supreme Court has the ability radically change the nation. We are in a time when it seems they are willing to do it, over the objections of long settled case law and the will of the people.

The floor is yours.

"A Choice Between Our Hopes and Our Fears"

Steve Harvey — Tue, 19 Oct 2010 03:28:13 GMT

cross-posted on Colorado Confluence: http://coloradoconfluence.com/...

The title quote, uttered by President Obama to describe the choice we have in the 2010 elections, captures the essence of the on-going struggle between humanity's inner-angels and inner-demons, a struggle which produces the realization of both our dreams and our nightmares, depending on which prevails in any given moment of history.

What follows is a full exposition of the meaning of the title phrase, including its significance in U.S. and World History, to the U.S. Constitution, and to the Colorado gubernatorial and U.S. Senate races of 2010.
The refrain "we want our country back" is the refrain of those who fear progress, who cling to a mythologically sanitized past rather than forge a path into the inevitable future. It attracts, along with those who are making some vaguer, narrower reference, those who want to take the country back from, among others, women, African Americans, Hispanics, non-Christians, and Gays, groups which have succeeded in diminishing the opportunity gap between themselves and the white, male, Christian minority that has historically maintained that gap to their own advantage and in accord with their own bigotries. And while we have progressed in diminishing the gap, the legacy of history remains with us today, and demands our forward-looking rather than backward-looking attention.

Those who have the courage to hope, to aspire to do better, don't ever want their country "back." We always want it "forward." Our history has been the story of a people moving forward, conceived in a Declaration of Independence which continued and contributed to a transformation of the world already underway, accelerating our reach for future possibilities, and our removal of the shackles of past institutional deficiencies. It was a nation of Progressives, of people who knew that you don't just accept the institutions handed down, but always seek to refine and improve them. It was a nation that drafted a document by which to govern itself, one which proved insufficient (The Articles of Confederation, drafted and adopted in 1777, though not actually ratified until 1781), and then got its representatives together to try again, ten years later, and get it right (producing the U.S. Constitution, which was a document drafted to strengthen, not weaken, the federal government).

The drafting and ratification of our brilliant Constitution marked a beginning, not an end, a point of departure through which to express and fully realize our collective genius, not an impediment to the use of our reason and will to address the challenges yet to come. It was drafted by people wise enough and humble enough not to imbue it with the quasi-religious hold it (or an insulting caricature of it) now has over some contracted imaginations. It was meant to be a source of guidance rather than a source of idolatry. It provided the nation with a robust legal framework through which to address future challenges, some of which were already visible at the time, and some of which were not, but which the framers knew would ceaselessly present themselves (and which many thought would promptly make the Constitution itself obsolete. The fact that that hasn't come to pass is a tribute to our ability to make from the document they created in a given historical context one which adapts itself to changing historical circumstances).

Ahead of the country remained the abolition of slavery, the protection of individual civil rights from state as well as federal power, a far-too-late end to the slaughter and displacement of the indigenous population (too late because they had already been nearly exterminated, and removed to tiny, infertile plots of land), the institution of free universal public education, the extension of suffrage to unpropertied males and women, the passage of anti-trust laws to preserve a competitive market, the establishment and necessary growth of an administrative infrastructure which immediately preceded and facilitated the most robust acceleration of economic growth in the history of the world, the desegregation of our schools, the passage of The Civil Rights Act of 1964, and the beginnings of absolutely crucial efforts to address the long-term detrimental health and economic consequences of environmental contamination.

There never was a moment in the course of this story when there weren't challenges yet to be identified and addressed, many of which could only be successfully addressed by means of government, and, often, only by means of the federal government (e.g., the abolition of slavery, which ended up requiring the federal government to prosecute a civil war; the enforcement of Civil Rights protections; and environmental protections covering interstate pollutants). Our Founding Fathers understood that. Thomas Jefferson himself said that every generation needed to refine its institutions to adapt to changing circumstances and meet the challenges of their own day. Such people never wanted their country "back." They always wanted it "forward." And they dreamed of establishing a country that would renew rather than renounce that commitment with every new generation.

Though there are many today who don't get this, most don't get it by means of blurry vision and historical inconsistency, rather than a retroactive commitment to what they claim currently to be an immutable truth. It is a tiny minority today, utterly detached from reality, who want to completely abolish Social Security or Medicare, though there are many who vehemently oppose health care reform and improved financial sector regulation. The difference between those past acts of our federal government that we have come to take for granted and whose value we almost universally recognize, and those present acts of our federal government that so many (so absurdly) call a "socialist" threat to our "liberty," isn't in the nature of the policies themselves (they are actually very similar in nature), but rather in the difference of perspective granted by elapsed time and an improved quality of life.

The impassioned, angry, vehement opposition to today's progressive reforms, almost down to the precise words and phrases (including cries of "socialism"), is virtually identical to that which confronted the passage of Social Security and Medicare in their day. It is the perennial resurgence of the same faction, the same force at work today as in those previous generations: The voice of fear, the clinging to past failures and deficiencies for lack of courage, the perception of progress as a threat rather than a promise, though those same cowering souls could hardly imagine living without the promises of progress fulfilled before their birth and in their youth. They take gladly from those progressives who came before and fought to establish the world they now take for granted, but fight passionately against those progressives of today striving to provide similar gifts of social improvement to future generations.

In Colorado, these two sides, these two opposing forces of Hope and Fear, are embodied in our U.S. Senate and Gubernatorial races. In both races, it is the urbane, highly informed, business savvy, pragmatic Progressive pitted against the retrograde, chauvinistic, insular and regressionary Conservative. Michael Bennet, as I have written before at some length (Why Michael Bennet Truly Impresses Me: http://coloradoconfluence.com/... is a model of reason, civility, humility, and subtle systemic understanding, all focused on how to leave our children with more rather than less opportunity than we ourselves have enjoyed. Ken Buck, his opponent, is a sexist troglodyte who accused a rape victim of "buyer's remorse" (though the accused rapist admitted in a tapped phone call from the police station that he had in fact raped her!), a candidate who opposes access to abortions even by victims of rape and incest (condemning some pre-teen girls to a premature motherhood that will, in some cases, utterly destroy them). With the same indifference to reality, Buck is committed to the pseudo-economic certainties of his ideological camp, certainties which defy the lessons of history and the prevailing economic models of those who actually study the subject.

In our gubernatorial race, we have a very similar match-up, with Democratic candidate John Hickenlooper (currently the very popular mayor of Denver) as a model of the rational, urbane entrepreneur (who, after being laid off as a geologist in his youth, opened a very successful brewpub in a downtown Denver area --LoDo-- which, through his enterprise and hard work, he helped to turn into a very robust restaurant and bar district), opposed by Tom Tancredo, the former U.S. Congressman (from my district, CD 6) who became nationally and internationally infamous for his outspoken xenophobia and belligerent anti-immigrant demagoguery. Again, it is a race of hope against fear, a repeat of similar struggles we have seen around the world throughout human history, with prosperity and human welfare flourishing where hope has prevailed, and a contraction of wealth and opportunity taking hold where fear prevails (sometimes accompanied by nightmares of violence directed against the scapegoats who have been identified as personified targets of that fear).

Economically, Hope counsels that we employ the best economic models to forge the best fiscal and economic policies possible to ensure the robustness, sustainability, and equity of our economic system, while Fear counsels that we base our economic policies on information-stripped platitudes, contracting rather than expanding, insulating rather than competing, cowering rather than aspiring. A hopeful people invests in its future; a fearful people stuffs its money in a mattress. A hopeful people works to create a higher quality of life, while a fearful people works toward enshrining past achievements and, by doing so, obstructing future ones. A hopeful people seeks to expand opportunity; a fearful people seeks to protect what's theirs from incursions by others. A hopeful people reaches out, looks past the horizon, and works toward positive goals. A fearful people builds walls, huddles together, and obstructs the dreams and aspirations of others.

But this year, in this election, it is not just any other incarnation of the struggle between Hope and Fear. It is the most dangerous form of that struggle, the form it takes when we are on the brink of inflicting on ourselves enormous suffering. Because the struggle this year is characterized by a terrifying discrepancy in passion: The angry, fearful mob is ascendant, while cooler heads are too cool, too uninspired, to face that mob down and disperse it.

It is under just such circumstances when, historically, Fear prevails over Hope. It is under these circumstances, circumstances that the hopeful among us are allowing to take hold, when countries get sucked into the nightmare that fear produces. This is what responsible, reasonable people of goodwill cannot, must not, allow to happen.

Vote. Make sure everyone you know votes. Confront the angry, frightened and frightening mob and insist that we are better than that. Don't let them put this state, this country, and this world back into Reverse again, as it was from 2001-2009, when America became a nation defined by fear, with a government defined by the belligerent ignorance which is Fear's most loyal servant. Let's keep this nation in Drive, and move hopefully into the future. In 2008, many of us were excited by that prospect, and in 2010, we should remain warriors of reason and goodwill in the face of the Grendel of small-mindendness awoken by the small, fledgling steps forward we have taken as a people. We need to defend, preserve, and advance what we accomplished in 2008. We need to move forward, not backward.

Don't sit this one out. Don't let the brutal tyranny of Fear and Ignorance rule us.

Judge Declares Affordable Health Care Act Constitutional

Bill Egnor AKA Something The Dog Said — Fri, 08 Oct 2010 13:36:51 GMT

Yesterday was a bad day for all the States Attorney General and Wing-Nuts who think that the Affordable Care Act is unconstitutional. Lawyers from the conservative Thomas Moore Law Center (set up by billionaire Catholic wacko Tom Monahan) got slapped around pretty good by District Court Judge George C. Steeh. He completely demolished the spurious arguments in his 20 page decision.

The Thomas Moore Law Center (TMLC) took a shot at the claim most likely to succeed against the ACA, namely that the Commerce Clause of the Constitution which allows Congress to regulate interstate commerce did not extend down to mandating that individuals purchase a product.

Basically this argument is that citizens can't be required to participate in a market. They have to have the right to not participate if they choose to do so for economic reasons. Like nearly all conservative arguments this sounds moderately reasonable as long as you stay inside the frame that it is presented in. When you are just looking at the individual there may be a hardship in being required to purchase insurance. It is not going to be cheap and the subsidies are not going to cover everyone.

Given those facts it is easy to see how this might be considered an overreach of federal law making power. However it leaves out the reason for the mandate. Everyone, even the Great Orange John Boehner likes the idea of ending denial of coverage for pre-existing conditions. However when you do that, there is a real chance that people will wait until they are ill before getting coverage. This means that they will not be paying into the system while they are relatively healthy but instead come in when they are sick and expensive.

To allow this would shift the burden of cost of their treatment to those who do have coverage before a major illness. This would drive up the cost over all. So there needs to be a requirement for everyone to have insurance. Which is what the individual mandate is all about, it is expected by Congress that by having all citizens insured, there will be a long term reduction in the cost of health insurance. Given the constantly rising cost of insurance in the last two decades and the consequent rise in uninsured people, Congress found that there was a crisis which encompasses the entire nation.

Judge Steeh looked at the plaintiffs argument that there was no power for the Government to regulate personal activity and found that:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.
The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses - through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of cost shifting is what makes the health care market unique.

Basically Judge Steeh did not take the bait to look at this from the point of the individual where the Governments power to regulate is weak, but correctly looked at it from the national situation. He finds that there is plenty of power for the Congress to regulate a market where individual decisions might disrupt the functioning of the market.

The TMLC also made arguments about the penalty being an illegal direct tax. Judge Steeh gave them a good dope slap on that one too:

The constitutional limits on taxes argued by plaintiffs relate to taxation generally for the purposes of raising revenue. While these might be legitimate concerns if Congress had to rely on its power conferred by the General Welfare Clause, such is not the case with regard to penalties imposed incidentally under the Commerce Clause. Id. In this case, the minimum coverage provision of the Health Care Reform Act contains two provisions aimed at the same goal. Congress intended to increase the number of insureds and decrease the cost of health insurance by requiring individuals to maintain minimum essential coverage or face a penalty for failing to do so. Because the "penalty" is incidental to these purposes, plaintiffs' challenge to the constitutionality of the penalty as an improperly apportioned direct tax is without merit.

In the end he denied all the claims the TMLC made and dismissed their case.

This is a good sign for all the other cases brought against the ACA on Constitutional grounds. The Judge did not have to make any finding of fact and the standard for finding it constitutional is the "rational basis". This standard does not require that Congress be correct that the ACA will lower cots, only that it is rational in its reasons for trying to do so and its assumptions in crafting the Act. Since the assumptions are not challenged by the suits there is little chance that even the most radically conservative judge will be able to find that Congress can not make laws where are essential to the regulation of an existing market. This includes requiring citizens to buy insurance or pay a penalty on their taxes as a result.

It will probably not stop the other law suits form going forward. After all they were mostly political stunts. However it does take a lot of the steam out of the sails of the wackos to have the very first case so decisively decided against them.

The floor is yours.

Yes, Jonah Goldberg, The Supreme Court Is Supposed To Decide What Is Constitutional

Bill Egnor AKA Something The Dog Said — Tue, 05 Oct 2010 13:05:00 GMT

Noted Conservative Hack Jonah Goldberg posted a little article tearing into the idea that the Supreme Court is the place where we define what is and is not constitutional. He is defending the new radical Republican talking point that all legislation should have a constitutional justification attached to it. This is the Tenther's (folks who think that the powers of the Federal Government are completely enumerated in the Constitution and the Tenth Amendment gives all other powers to the states individually) favorite meme.

They would use this thinking to end the Federal minimum wage, Social Security, Medicaid and Medicare. All the big Tea Party faves have this idea, with Joe Miller, Sharon Angle and Christine "I am not a witch" O'Donnell really leading the charge.

This idea is nuts on the surface but it is packed full of nutty goodness as you get deeper as well. The whole push for "constitutional fealty" by the Right is a ruse and always has been. The reason that they want to return to so called original intent it so wipe out two centuries of case law that does not suit their radical agenda.
Things like the Loving decision and Brown v Board of Education have pushed our civil rights in the direction that seems most consistent with the intent of the Framers who wanted the people of their nation to be free and equal under the law.

Mr. Goldberg makes the point that all legislators should be deciding for themselves what is and is not constitutional and should vote against anything they think is unconstitutional. That is fine as far as it goes, but he fails to understand that the while there is a need to think about constitutionality of legislation, the Legislative and Executive Branch are political branches by design. They have other concerns than just the law and the Constitution.

This can be clearly seen in the over-reaction to the 9/11 attacks. A partisan majority in the House and Senate, at the demand of their constituents, put into affect laws that would have been anathema to a previous Congress. Further the Executive Branch set out to do things which the Supreme Court has found to be unconstitutional in terms of declaring citizens "enemy combatants" and holding prisoners indefinitely.

This same Congress and Executive Branch enacted a law invalidating Heaves Corpus, the right to challenge your detention and face your accusers. It also tried to prevent the Courts from even reviewing this law.

Mr. Goldberg asks, sarcastically:

Before we get to the historical niceties, a question:
Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Anyone? Anyone?
How about Presidents? Should they sign such legislation into law?

All the acts above were voted and signed into law, and based on Goldberg's premise we have to assume they were thought to be constitutional by those who proposed and voted one them. The thing is not everyone agreed that they were Constitutional, including the branch of government that has become our arbiter of the Constitution, the Judicial branch.

These abuses show exactly why the Supreme Court must be the final say. The reaction of a political branch to the political situation of the nation can lead to laws that are contrary to the goals of the nation, to provide for the common defense and secure the blessings of liberty. Without a review of calmer heads who do not have to look to the fickle whim of the electorate for their continued employment gives us a check that is badly needed, especially in times when demagoguery and know-nothingism runs rampant.

It is not as though there are not checks on the Judiciaries' powers as well. Yes, the Supreme Court is the final say on what is and what is not constitutional, but the Legislative Branch can keep working on legislation until it passes muster. Or there can be a change in the Constitution and then the High Court would need to use that as part of its thinking going forward.

Basically Goldberg is using the old reductio ad absurdum argument, where he takes a outlandish premise, extrapolates to the completely absurd then argues against that absurd conclusion. There is no doubt that legislators should consider if a piece of legislation is constitutional or not. However there is a wide range of opinion, even among Supreme Court Justices what this means. To assume that some of our less than swift legislators will take the time to think through all the constitutional ramifications of every piece of legislation, when many of them don't read the entire bill, is absurd in and of itself.

However Mr. Goldberg's goal is not good government. He is more interested in making sure that the powerful interests that many legislators lean on to tell them if a law is good policy or not continue to have a disproportionate amount of power. He wants to spin up his low information base to the idea that we are betraying the Constitution while weakening the power of the only branch that can and will put a check on a reactionary political climate and prevent the legislating away of rights protected by the Constitution and centuries of law based on it.

No system of government is perfect, as Winston Churchill said:

Democracy is the worst form of government. With the exception of every other form tried.

This premise that the courts should not interpret law is one that conservatives love. It plays into the idea that complex problems can be solved with simple solutions, the beloved and mythical "common sense". In the governance of a nation of 300 million plus citizens spread out over a third of continent there can be no simple solutions. Having one place where the final say is granted is a needed aspect of governing and pushing know-nothingism in regards to it is at best disingenuous and at worst dangerous to our overall Republic.

The floor is yours.

What, Exactly, Is The "Radical Homosexual Agenda"?

Bill Egnor AKA Something The Dog Said — Wed, 29 Sep 2010 13:22:14 GMT

Okay, call me a dope if you must but I just can't figure out what the hell the "radical homosexual agenda" that so many conservatives talk about actually is. Yeah, yeah, you could insert a lot of sexual identity jokes here, but really that just plays into stereotypes about our gay citizens. The fact is, and most of you will be able to confirm this from your own experience is that gay, lesbian, bisexual citizens span the same range of good, bad, conservative and liberal as those who are heterosexual.

Just take a look at the Log Cabin Republicans (a group who has the best ability to compartmentalize and segregate concepts that I have ever seen), here is a Republican gay rights group. Almost a oxymoron in and of itself. Yet these are conservative gay citizens who support most of the Republican agenda.
In my life I have known a lot of people who are gay. I was a child actor associated with a couple of professional theater troops. As you might guess, some of the folks who acted, directed, did costumes or lighting were gay. In a way I think I was lucky, it was not an issue that Tom and Dan were living together and loved each other, it just was what it was and even a callow teen like I was couldn't get too worked up over two men in love.

The point though it this fear mongering idea of the "radical homosexual agenda". I suppose it is pretty dammed radical to want to not be fired because you boss is afraid of "the gay". In most states if you are gay or transgendered then you are working at the whim of the most homophobic of your management team. They can fire you for your gender identity or your sexuality with no recourse. Hell they can tell you that this is the reason that you're being fired and there is not a dammed thing you can do about it.

Trying to find out what the "agenda" is I went over to Conservapedia (to paraphrase Obiwan Kenobi "A more wretched hive of scum and villainy you will never find) They seem to feel that the "agenda" is all about making homosexuality acceptable. That's it really. Here is a quote that features prominently in the post from Justice Antonin Scalia:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

That quote is from Lawrence v. Texas which invalidated the homosexual sodomy laws. That is also the case on which the overturning of Maj. Margaret Witt's dismissal from the Air Force under DADT was based.

I don't know about you, but is being accepted for who you are really that radical an idea? To me, not so much. After all, the argument from the Right on this is based primarily on their religious beliefs that the Abrhamic (Christians, Muslims and Jews having the same root god) god hates homosexuals. They are insisting that any attempt to give full rights to those who their god has said are bad is infringing on their rights. After all if you can't fire a faggot for being a faggot it must be an offense to God or something like that.

It is always telling that the folks who scream the loudest about us trying to extend tolerance to all people are the ones who use tolerance as the basis for their discrimination. They want us to tolerate their bigotry so others can't have tolerance or full civil rights under the law.

There is a lot of talk about indoctrination in the schools. Basically they are upset that there might be books where Jenny has two mommies or two daddies. In a way they are right, there is teaching (which can always be called indoctrination) going on here, but it is in response to the indoctrination or teaching that kids are getting in Church and at home. If there were not poisonous jackasses out there telling their kids that gay citizens are evil, it probably wouldn't be an issue.

This all seems to come down to the common Conservative trope that if one group gains full rights then the majority's rights are somehow diminished. It has been the primary argument against full marriage rights; that by allowing two men or women in love to get married weakens marriage. It was always a scarcity fallacy and the recent Prop 8 ruling by Judge Vaughn Walker eviscerated this premise in the finding of fact.

In the end, this all comes down to being a good scary phrase, this "radical homosexual agenda" rather than something they can point to which is actually radical. Gay folks want to be able to serve in the military, marry the love of their lives, be able to rent where ever they want, be able to be secure in their jobs from the small minded bigots of our older generations. That is nothing more than every American wants; to be able to live openly and proudly as whom they are, protected by the Constitution that our nation is founded on.

In the Declaration of Independence Thomas Jefferson wrote "We hold these truths to be self evident, that all men are endowed by their creator with certain inalienable rights, chief amongst these are Life, Liberty and the Pursuit of Happiness" at the time it was a radical idea. Today Conservatives think that our gay citizens wanting to redeem this promise for themselves is a still a radical idea. Who would have thought that people who want to wrap themselves in the mantle of the Founders would wind up on the side of the Monarchists?

The floor is yours.

No, Newt, There Won't Be Shariah In The US, Trust Me

Bill Egnor AKA Something The Dog Said — Mon, 20 Sep 2010 13:12:23 GMT

There is a meme out there in the radical Republican Party about Shariah (Islamic law based on the Qur'an and other works) being imposed here in the United States. It has so much acceptance that a supposed 2012 Republican Presidential candidate, Newt Gingrich, could call for a Federal law banning it, at the Value Voters summit in Washington and get a standing ovation. To say that this kind of crazy gets right up my nose is an understatement on the level of saying the razing of Carthage was a minor property dispute.
It is hard to know where to start in on the stupid on this issue, but let's begin on a point near and dear to my heart, the Constitution. The First Amendment makes it clear when it says:

Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.

That means all religions, not just one. There is also the Article VI, Clause 2, the Supremacy Clause which makes the Constitution, Federal Laws and Treaties the supreme law of the land. No other law can supersede these laws, whether they be religious laws or State laws.

This whole "their going to try to impose Shariah!!" hysteria is just that, fear mongering to whip up the base of the increasingly insane Republican Party. What is particularly galling about all of this is the level of unselfconscious hypocrisy that goes along with these fears of religious law being established in the United States.

The very same people that are shrieking about Shariah are the ones who insist that we are a so-called "Christian" nation and want to be sure that the Ten Commandments are displayed everywhere. They are the ones that worry incessantly that there is war on Christmas (a holiday for the birth of their messiah). They are the ones who insist that we can not allow our gay, lesbian and transgendered citizens full rights because their god has said that they are bad people for their sexuality or mis-assigned gender.

As an Atheist I actually have a little sympathy for them. If you are on the outside of a religion it is very easy to see the beliefs as more than a little demented and sinister. The believers don't have to have logic or reason to support their initial position, it is based on faith, then they may or may not proceed from logic but that initial belief is what allows any outsider to say "Just look at what those fuckwits think is the "right" thing to do!"

It is entirely possible that for people of faith in one deity to have even a stronger reaction to other religions proscriptions. After all the Abrhamic religions all have gods which tell their believers that they are the one true god and that they shall not subject their deity to market forces. When you have this as a core item of faith then the sinister nature of another's oppressive beliefs are brought into even sharper contrast.

When religion and politics ride in the same cart, it is almost always a disaster. The important doubt that restrains politicians is removed and then the cart tends to plunge headlong, faster and fast, driven by people who are sure that their god will not let them crash. This is the one of the dangers of the radical Republicans,. People like Delaware Republican Senatorial Candidate Christine O'Donnell are filled with religious zeal and will use that zeal as the basis of their policy. When we are talking about someone who thinks masturbation is equal to adultery, is that so different from Shariah?

The good news is that the trend is away from laws based on religious bigotry. The finding of fact in recent LGTB cases has shown the opposition to full rights to be based on nothing more than base fear and religious based intolerance. The blue laws which kept places like my home state from selling alcohol on Sunday's until just this year are slowly being repealed as people find that they don't really care what their neighbor does if it does not affect them. Even the push to legalize marijuana, the Just Say Now campaign is gaining steam and credibility because the idea of real personal freedom is one that Americans like.

So in the end if whether it is our own homegrown folks who want to impose religious law, or the faux ones they use to keep their base in a constant state of fear, the reality is there will be no religious law in the United States. It is one of the things the Founders and Framers were very clear that they did not want. They had the chance at the start of our Republic to make a national religion or to outlaw other religions and they resisted the temptation. We honor that choice by reaffirming it. Whether you have no faith or believe in a present and vengeful god you have the right to have and express that position in this nation. It is part of what makes us great and we should not play politics with it.

The floor is yours.

ACLU And CCR File Suit Against Gov For Targeted Killings

Bill Egnor AKA Something The Dog Said — Tue, 31 Aug 2010 13:04:46 GMT

In the movie Witness, there is a scene where a little Amish boy, who has witnessed a murder, takes the gun of the detective who is there to protect him from a chest of drawers. He is caught by his grandfather who sits him down for a talk. The grandfather asks if the boy would use this gun to kill. The boy says that he would only kill a bad man. The grandfather asks "How will you know who is the bad man?" This is the central point of our system of justice, we don't just assume that someone is a bad man before punishing them, we have an elaborate process designed to require proof of actions before we punish.

Unfortunately our trauma with terrorism has eroded this system. Today, as you read this, there is a list of people around the world who are targeted for death. They are suspected of being involved with terror plots, and some of them are your fellow citizens. If they are found anywhere in the world by our forces they will be killed. Not captured and brought to trial, not attempted to be captured, but killed out right.

The Center for Constitutional Rights and the American Civil Liberties Union have filed suit challenging the legality of this policy. There is an Islamic cleric named Anwar Al-Aulaqi who has been implicated in both the Fort Hood shootings and the Fruit of the Boom bomber plots. He has made many anti-American statements including the active encouragement of terrorism.

Mr. Al-Aulaqi is believed to be in hiding in Yemen. He is a citizen of the United States and he has been on so-called "kill list" for months. The issue here is can the United States use lethal force in a country which is not at war and is far from any of the existing battlefields? There is no doubt that under some circumstances deadly force can be used, but they are mostly involving situations where the person being targeted is fighting back, as in a shoot out during a capture attempt.

The other acceptable time that deadly force can be used away from the battlefield is preventing an imminent attack or loss of life. Say you knew that someone was taking a backpack bomb to a crowded market. U.S. and International law allows for you to kill that person if there is no other way to stop them. Even when the threat is immediate, this is considered to be the last resort.

A big issue in this case is the way in which names are added to list, as well as the amount of time which names stay on the list. As you might expect the nature of the process by which names are added is secret. The CIA is in charge of this list and the operations which would result in someone on it being killed. It is very troubling that this process has no oversight. It resides completely in the perview of the Executive Branch. Up to this point they have basically said "Trust us" in terms of making sure that only bad people wind up on this list.

Sadly, when we are talking about an American citizen (even one accused of the heinous crime of terrorism) trust us can never be enough. I tend to think that Mr. Al-Aulqi is piece of human garbage. I won't shed a single tear when he is gone from this world. That said, I'm not willing to grant the Executive Branch the unlimited power to declare citizens enemies and then send our covert operations teams out to kill them. You might remember a recent Administration that took the powers they had and extended them up to and including declaring citizens enemy combatants and then holding them (and torturing them) for years without access to lawyers or even being charged with a crime. This would be just and extension of that and very, very dangerous one at that.

The law suit that the CCR and the ACLU have filed challenges the power of the government unilaterally and secretly add a person to a "death list". Vince Warren of the CCR sums it up pretty well:

"The United States cannot simply execute people, including its own citizens, anywhere in the world based on its own say-so," said Vince Warren, Executive Director of CCR. "The law prohibits the government from killing without trial or conviction other than in the face of an imminent threat that leaves no time for deliberation or due process. That the government adds people to kill lists after a bureaucratic process and leaves them on the lists for months at a time flies in the face of the Constitution and international law."

The Founders were clear; they did not want the enormous force of the State to be wielded against the individual without due process of the law. This was for the protection of the individual who is at a huge disadvantage in power. It also helps to prevent mistakes. Right now the CIA and people in the Executive Branch make the call based on intelligence data. As we all know too well, intelligence data can be wrong or be spun in politically expedient ways. This is the same kind of process which had us detaining people in the Guantanamo Bay prison as suspected terrorists. We have since released many of them, after finding that they were not actually terrorists of any kind. When we are talking about execution we should have a process that is less likely to be in error, there is no giving back a life once it is taken.

If our intent to kill those who would plan, advocate and help those who would commit terrorism against our nation can not survive the process of law, then it is pretty clear that we should not be killing those people. The idea of get them before they get us is one of preemptive vengeance. That is not the American way; we don't deal in vengeance we deal in the law, and the ideal of Justice.

Yes there are people who will kill Americans without a second thought. We don't owe them anything. We do, however, owe ourselves the standards that have protected and guided us as a nation for 234 years. The standards of due process and equal justice before the law, in open courts. These standards allow the accused to confront witnesses against and evidence against them with their own. These standards and the ideals behind them are torn asunder when the Executive Branch, not the Judicial, decides that a citizen is to be killed, without an immanent threat and without the processes of the law.

It is easy to say we will only kill the bad men. It is much harder to know, with the certainty that is required for execution; just who the bad men really are if we do not follow the process of law.

The floor is yours