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American Tories: Attacking the Founders and the Constitution

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Should we acknowledge that the U.S. Constitution is filled with “archaic, idiosyncratic and downright evil provisions,” and “extricat[e] ourselves from constitutional bondage” by cashiering the document?

“As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken,” argues Louis Michael Seidman, tasked with teaching constitutional law at the Georgetown University Law Center . And the Constitution, he asserts, is largely to blame.

The Constitution, he writes, was adopted by a “group of white propertied men who have been dead for two centuries, knew nothing of our present situation . . . and thought it was fine to own slaves.” The Framers acted illegally in drafting the Constitution because they exceeded their power. Moreover, “[n]o sooner was the Constitution in place than our leaders began ignoring it.” And ignoring it is often a good thing: FDR did it for example, and so did the Supreme Court when it banned school segregation.

Besides, “much constitutional language is broad enough to encompass an almost infinitely wide range of positions.” And while we should keep some parts of the Constitution—like regular elections and freedom of speech—the rest gets in the way of leaders who make considered judgments on the merits. We need to rely on other sources of legitimacy, he concludes, moving to an “unwritten constitution,” like that of Britain.

That such a judgment was rendered is less shocking than who rendered it. The judgment is not unique because there always have been American Tories—people who chafe at restraints on central power and would prefer a British-style government. In recent years, as political “progressives” have gradually lost the scholarly battle over constitutional interpretation, some have stopped pretending the Constitution means whatever they want it to, and have begun to trash the document itself. A controversial example was the Time Magazine cover essay of June 23, 2011. (See my response to that article here.)

But the source of the claim is more shocking, because it comes from one who has taught constitutional law for 40 years. And who should know better.

Did the Constitution cause our present “fiscal chaos?” Quite the contrary. The crisis has arisen not because we followed the Constitution, but because we have allowed federal officials to ignore it.

Read more from this story HERE.

The Budget Control Act Of 2011 Violates Constitutional Order

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In a Constitutional Republic of the sort that we thought we had, the process by which laws are made is at least as important as the laws that are enacted. Our Constitution prescribes that law-making process in some detail, but those who voted for the “Budget Control Act of 2011″ (“BCA 2011″) were wholly unconcerned about trampling upon required constitutional processes on the way to the nirvana of “bi-partisan consensus “to avert a supposed crisis. At least two titles of the bill now being rushed through Congress are unconstitutional.

First, the “Debt Ceiling Disapproval Process” in BCA 2011 Title III unconstitutionally upends the legislative process.

The Constitution’s Article I, Section 8, Clause 2 vests in Congress the power “to borrow Money on the credit of the United States.” As two of America’s leading constitutionalists, St. George Tucker and Joseph Story, observed, the power to borrow money is “inseparably connected” with that of “raising a revenue.” Thus, from the founding of the American republic through 1917, Congress — vested with the power “to lay and collect taxes, duties and imposts,” — kept a tight rein on borrowing, and authorized each individual debt issuance separately.

To provide more flexibility to finance the United States involvement in World War I, Congress established an aggregate limit, or ceiling, on the total amount of bonds that could be issued. This gave birth to the congressional practice of setting a limit on all federal debt. While Congress no longer approved each individual debt issuance, it determined the upper limit above which borrowing was not permitted. Thus, on February 12, 2010, Congress set a debt ceiling of $14.294 trillion, which President Obama signed into law.

However, a different approach was used when BCA 2011 was signed into law on August 2, 2011. Title III of the Act reads the “Debt Ceiling Disapproval Process.” Under this title Congress has transferred to the President the power to “determine” that the debt ceiling is too low, and that further borrowing is required to meet existing commitments,” subject only to congressional “disapproval.” For the first time in American history the power to borrow money on the credit of the United States has been disconnected from the power to raise revenue. What St. George Tucker and Joseph Story stated were inseparable powers have now by statute been separated.

Read More at Floyd Reports By Herbert W. Titus and William J. Olson, Floyd Reports

Golfing While the Constitution Burns

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When Barack Obama and John Boehner played golf this weekend, they played on the same team. How appropriate.

Barack Obama has violated the Constitution’s war-making power – reserved by Article I, Section 8, to Congress – from the moment he sent American troops into harm’s way without Congressional approval. He has been violating the War Powers Resolution since at least the 60th day of that campaign. And he has violated the most liberal reading of that act – the one Boehner has adopted as his own – since this weekend. Yet despite the letter Boehner authored last week, which the media presented as an “ultimatum,” Obama has neither obtained Congressional authorization nor removed our troops. Boehner’s letter weakly supplicated “I sincerely hope the Administration will faithfully comply with the War Powers Resolution,” but at least it seemed to set this weekend as a definitive cut-off point.

The “deadline” has come and gone, and Obama has not answered the most burning questions of the mission’s legality to anyone’s satisfaction. Instead, the president has thumbed his nose at Congress in general, Boehner in particular, and the American people at large, and the Speaker-cum-caddy has made no meaningful response whatsoever.

Obama insists the American role in Libya is too diminutive to constitute “hostilities,” so his action is perfectly legal. White House spokesman Jay Carney repeated his boss’s party line at Monday’s press conference, stating, “the War Powers Resolution does not need to be involved because the ‘hostilities’ clause of that resolution is not met.” However, soldiers in Libya are receiving an additional $25 a month in “imminent danger pay.” American drones still rain missiles down upon military targets. NATO is alternately bombing Muammar Qaddafi’s home and killing the innocent Libyan civilians they are purportedly protecting. (We had to kill the civilians in order to save them?) NATO admitted (at least) one of its bombs went off target on Sunday, killing nine civilians in Tripoli, while allied bombs allegedly killed 15 civilians in Sorman on Monday.

Not to worry, though; Defense Secretary Robert Gates said over the weekend, in a confidence-builder worthy of Churchill, “I think this is going to end OK.” Gates, who once opposed the Libyan adventure, has pulled a 180 on the matter.

Read More at Floyd Reports by Ben Johnson, the White House Watch

JUSTICE SCALIA RIPS LAWMAKERS AS BEING SLEEPY AND LAZY

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Supreme Court Justice Antonin Scalia is not the sort who leaves readers wondering what he really thinks, especially when it comes to members of Congress. In two opinions Thursday, Scalia disparaged lawmakers, not for the first time, as sleepy and lazy.

To be sure, the 75-year-old justice will just as eagerly take a shot — or two or three — at colleagues on the court who come out on the other side of cases.

Scalia has laid out an approach to the law over his quarter-century on the court that rests on the meaning of the Constitution as it was understood by the people who wrote it and on the plain language of laws, not the legislative record that accompanies many bills. He also embraces the view that people should turn to their elected officials, not the courts, to solve many problems.

Commenting in a case involving cocaine sentences, Scalia wrote briefly to criticize one part of Justice Sonia Sotomayor’s majority opinion that delved into legislative history. In particular, Scalia did not like that Sotomayor made reference to congressional testimony by a Yale medical school professor.

Scalia said the outcome of the case would be the same even if the professor “had not lectured an undetermined number of likely somnolent congressmen on the ‘damaging effects of cocaine smoking on people in Peru.’”

Read More at the Blaze By scott Baker, the Blaze