How do you Know Something is True? Use Constants.

While on vacation in a neighboring state helping my son-in-law build a second bathroom for his soon to be family of six, I noticed more fully what I have always known; if your base is wrong so is everything else. Nothing was square, plumb or level. Things fit, and almost fall into place as if by design, when the base is right. When the foundation is level and when studs are vertically placed 16 inches on center 4 by 8 sheets of sheetrock fit perfectly, as does every thing else. If, as in my case, there are no true reference points, or constants, nothing is right, nothing fits. I had to begin anew with a rectangle room without a single wall from which to get a true bearing. Getting back to the basics that I new to be true, was painful and many times harder, but it had to be done.

In construction, as in all areas of endeavor, there are tools to get us back to proven constants such as a squares, chalk lines, or levels. In other fields it may be a ruler, compass, or a Bible. Ancient mariners used the North Star as a constant. Math, algebra, geometry are based upon constants. In chemistry water is always, and forever will be, H2O and freezes at 32 degrees. In government the constant should be the Constitution. My point. What are your constants? What do you use to decide if something is true?

Are there constants in all fields of study—even in political science? When I find another out of harmony with myself, I want to know his/her constants. What do you read or watch? What is your base? I am unimpressed when I hear the labels republican, democrat, liberal or conservative as these change—thus are not constants. John F. Kennedy, a liberal and a democrat, would make George W. Bush, a conservative and a republican, look very liberal. These terms are not trustworthy over time.


If Something is Wrong with a Law the Supreme Court will Stop it? Wrong!!

How many times have I heard that if something is wrong with a law of Congress the Supreme Court will stop it and that the Court is totally independent of Congress? Both views are decidedly incorrect. Supreme Court members may, in fact, agree that something is unconstitutional but they, by themselves, or as a body, are helpless in blocking it unless it is first challenged by someone else.

The Supreme Court may not interfere with any law unless someone is hurt or damaged by it, and is able and willing to challenge the law, over a long period of time, with the likelihood of a costly but doubtful conclusion. In other words, much that is unconstitutional goes unchallenged by the Court and, if not challenged, becomes past practice and later is often used to support new alterations to the Constitution.

The Court is only a partial check on constitutional law. Congress, the body charged with making all law, as per Article I, Section I, is to responsibly check itself with the Constitution. Members of Congress take an oath to do so. The voter does not take an oath, but is expected to have greater loyalty to the Constitution then to political party, to be familiar enough with the Constitution to spot indiscretions, and to remove those who would defile it through ignorance or intent.


What to do when the Supreme Court Fails?

What if the Supreme Court became an arbitrator trying to please both sides rather than “letting the cards fall where they may,” ruling alone on constitutionality as designed? In the end neither side is really happy and the Court’s function is blurred or discredited. What if preserving its own image became more important to justices than defending the Constitution? Or worse, what if the Court forced a round peg into a square hole, so to speak, to force a decision not intended, or argued for by either side therefore creating new law—a function of Congress alone? What if all of the above were in one decision such as with the recent Supreme Court decision on National Healthcare? How can the states or people keep the Supreme Court in line with the U. S. Constitution? The answer is in the Constitution as understood by the Founders.

Our constitution first divided power between the states and the federal government with the powers given to the federal government listed, defined and limited and those of the states left undefined and not listed, as per Amendment 10. This is known as federalism and is sometimes thought of as a marriage—shared and equal—neither the state nor federal government the master nor slave of the other.

The portion of power left to the federal government is then divided between the legislative, executive, and judicial branches. The down side of federalism (our marriage) is that the umpire is one of the three branches of government at the federal level and as such is likely to rule in favor of a strengthened federal government were it to arbitrate between the states and the federal government. It is equivalent to two adversarial teams playing basketball and the referee is a member of the federal team. The balancing component to this, potentially lopsided division of power, is the doctrine of nullification.


Should we be frightened?

What follows are six major changes to traditional constitutional procedure that have happened the past six months, none of which through the change process required in Article V of the Constitution, but each will adversely affect the distribution of power in this country and how we define liberty in the future. This time period could very well be the most radical six-month period of constitutional change in U.S. history. Should we be concerned with, or worse, frightened by, our own government?

We begin on New Years Eve with the President signing into law the 600 plus page National Defense Authorization Act which, among other things, authorizes the military to seize and transport U.S. citizens from U.S. soil to Guantanamo Bay on the presumption that they are terrorists. The threat of potential indefinite incarceration without recourse to lawyer, judge and trial is unconscionable in a free society. The new law ends the writ of habeas corpus found in Article I, Section 9 of the Constitution and Posse Comitatus protection (protection from ones own armed forces). It also lays waste to much of the Bill of Rights, notably Amendments 4, 5, 6, and 8. Its intimidation potential will impact free speech, press, and assembly as well. Local law enforcement is essentially bi-passed.

Then in February, The National Operations Center (NOC), a part of The Department of Homeland Security, released its “Media Monitoring Initiative” giving itself permission to “gather, store, analyze, and disseminate” data on millions of users of social media, primarily Facebook, Twitter, and YouTube. So far they appear less concerned with the information on the average Joe or Jane, although all is kept just in case, as they deal with unmanaged journalists and bloggers. These are defined as those who use “traditional and/or social media in real time to keep their audience situationally aware and informed,” such as myself. Targeted are those who post articles, comments, or other information to popular web outlets. It is a clear violation of the 4th Amendment in the Bill of Rights.


Judicial Legislation or Activism at Its Worst

With respect to the Supreme Court’s ruling on National Health Care, Justice Anthony M. Kennedy said that the court majority “regards its statutory interpretation as modest. It is not.” Then, noticeably disturbed by the ruling, added. “It amounts to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” He called it “judicial legislation” and accused Chief Justice John Roberts of trying to “force on the nation a new act.”

Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning. George Washington warned us in his Farewell Address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Usurpation, in his day meant twisting things around to extract meaning that was initially not there.

So, what did Justice Roberts twist or legislate that changed the National Affordable Healthcare Act (Obamacare) as passed by Congress? At the top of the list, his rewrite called it a tax when Congress never passed it as a tax, and the political party passing it, along with their President, Barack Obama, emphatically resisted any description of it as such. Rich Lowry, a political commentator, said it best. “Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply.


Can States Opt out of Unconstitutional Federal Laws?

The U.S. Constitution requires that states remain a republic and gives the federal government authorization to mandate such (Art. IV, sec. 4), but does it work the other way? Can the states require that the federal government remain a republic and not turn into a socialist state? With the Affordable Care Act one seventh of the economy is turned over to the federal government.

Such is the question posed by Arizona in a new initiative for the November ballot. If passed it would give Arizonians two ways of ignoring federal law that exceeds the constitutional powers of the federal government as identified in the U.S. Constitution, either by vote of the Arizona Legislature with the signature of the Governor, or, by the people through a ballot measure. All other powers “are reserved to the States, or to the people,” as noted in Amendment 10 of the Constitution.

Arizona acknowledges the U.S. Constitution as “the Supreme law of the land” but will add to her state constitution language prohibiting the U. S. Constitution from being violated by any government, including the federal government.


Are the President’s “Kill List” Activities Constitutional?

Two things have brought drone warfare to public attention in an amplified way the last few days: our assassination of Abu Yahya al-Libi, Al-Qaida’s second-in-command, and The New York Times release of classified information showing that President Barack Obama, on a weekly basis, reviews a “kill list” and personally authorizes each kill. Is this Constitutional?

The paper revealed a “top secret ‘nominations’ process to designate terrorists for kill or capture” but that there is little interest in capture because of a hidden “take-no-prisoners” policy. In the last three months 20 “presumed terrorists” have been assassinated, 14 in Yemen and 6 in Pakistan. It complicates things when they have to be sent to Guantanamo Bay, thus only one person on the list has been sent to the Island prison. Killing them frees us from those messy practices of “enhanced interrogation” (torture) and “rendition” (exporting torture to foreign nations, called “black sites,” less squeamish about screaming victims), practiced under the George W. Bush administration. Under Obama the dead do not need rendition, military commissions, and indefinite detention, the paper infers (Secret “Kill” List Tests Obama’s Principles, New York Times, May 29, 2012).

Moreover, the Obama Administration also got rid of the messy civilian casualties problem by defining all “military age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.” They would not be in the area if they were not also terrorists—guilt by association—they reason. Therefore the Administration can argue, “that not a single noncombatant had been killed in a year of strikes.” One administrative source said, “They count the corpses and they’re not really sure who they are.” Unfortunately for The Administration, The New York Times noted, “Videos of children’s bodies and angry tribesmen holding up American missile parts flooded You Tube, fueling a ferocious backlash that Yemeni officials said bolstered Al Qaeda.” Sometimes our actions create our next wave of enemies.


Treaty to Give the Oceans to the United Nations Now Before the Senate

Like a bad penny that one cannot get rid of, the idea of giving the world’s oceans, some 70% of the globe, to the United Nations is once again before the Senate Foreign Relations Committee. The “full court press,” led by Committee Chairman John Kerry, heard testimony favoring the idea from Secretary of State Hillary Rodham Clinton, Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff General Martin Dempsey. Additional hearings are scheduled this month with a favorable vote scheduled, they hope, before July. President Barack Obama would like a full Senate vote before November to avoid the ratification of the Law of the Sea Treaty from becoming an election issue but is willing to wait, if need be, until December. Then, while his party retains control of the Senate, quietly force it through before January.

This is not a party issue. Presidents and secretaries of state from both Republican and Democratic Parties have favored this idea. Virtually all administration leaders from either party, and the advocates noted above, are Council on Foreign Relations members, an organization decidedly globalist in philosophy, and thought to be the mother of this idea.

The treaty evolved out of a series of United Nations Conventions on the Law of the Sea between 1973 and 1982, with the third such convention, known as UNCLOS III, being the most important. It is designed to create government dictating every aspect of the world’s oceans. What began as an effort “to codify certain navigational rights had … morphed into a ‘constitution for the oceans.’ ”

So what does the Law of the Sea Treaty, commonly, and hereafter, referred to as LOST, do? All ocean bordering nations were allowed a total jurisdiction outreach of 12 nautical miles from their shoreline, called Territorial Waters, plus another 200 nautical mile Exclusive Economic Zone with sole exploitation rights over all natural resources. All ocean water thereafter was International Water, controlled and managed by organizations created by the treaty but under the oversight of the United Nations. Under this new treaty the United Nations would own and control 70% of the earth’s surface.


Ruth Bader Ginsburg: Don’t Use U.S. Constitution?

On January 30, 2012, Supreme Court Justice Ruth Bader Ginsburg surprised many by advising those attempting to create a new constitution in Egypt not to use the U.S. Constitution as its model. “I would not look to the US Constitution, if I were drafting a constitution in the year 2012,” she told the Egyptian people on national television.

“I might look at the constitution of South Africa. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution: Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world,” (U. S. Supreme Court Justice Ruth Bader Ginsburg To Egyptians: Look to the Constitutions of South Africa or Canada, Not to the U.S. Constitution, MEMRI TV Al-Hayat, Egypt, Jan. 30, 2012)?

Those who wish to undermine the Constitution infer that our Constitution may not be a good fit for other cultures like Egypt. On this score they would do well to remember that we have assimilated every language, culture, religious and ethnic group on earth and we did so because all humans share the same basic need for freedom from excessive government to fully flourish. The Constitution is the most flexible governing document with respect to diversity ever written, and unless modified by progressives such as Ginsburg, it always will be.

Implied is the assumption that because it is old, it is outdated and therefore irrelevant to the needs of our day. This document will always be relevant because it is designed to harnesses the negative aspects of human nature and is based upon natural law; items that do not change from century to century. Man is still power hungry, and the people need to be protected from such hunger, whether man rides a horse, drives a car, or flies an airplane. Our Constitution minimizes these forces by dividing, restricting, and listing power. Should some overreach their power we have elections and impeachment to remove them. Finally, we have a Bill of Rights that further harnesses excessive government. None of these measures have shown themselves to nolonger be needful. Justice Ginsburg does not seem to understand this.


Squat, Cough and Spread Your Cheeks! Is This Really Constitutional?

Are body cavity searches constitutional? In the recent Supreme Court, decision Florence v. County of Burlington, the Court ruled 5 to 4 that law enforcement may strip search those arrested for even minor infractions before incarceration, “even if the officials have no reason to suspect the presence of contraband” (Adam Liptak, Supreme Court Ruling Allows Strip Searches for Any Arrest, New York Times, April 2, 2012).

This is not particularly new, as the Supreme Court had previously ruled in 1979 that “visual body cavity searches of all detainees after they had contact with outsiders,” was permissible. In practice, however, lower courts had ruled “the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility” (Glenn Greenwald, The Obama DOJ and Strip Searches, New York Times, Apr. 3, 2012).

But the Obama Department of Justice and five conservative justices (strange bedfellows) both wanted a blanket, more universal policy. When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps,” argued Justice Department lawyer Nicole A. Saharsky. So now everyone arrested is subject to possible strip searches on the discretion of law enforcement alone.

The Fourth Amendment to the U.S. Constitution reads in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Clearly the states, who initiated the Bill of Rights as a condition of their acceptance of the Constitution, had had negative experiences with government overreach with respect to “unreasonable searches” and wanted no such practices from the new government they were creating.