The Constitution is under attack, and from an unexpected source

Commentary by James Shott

Just when you think you have heard the silliest thing possible, someone comes along and slaps you in the head with something sillier yet.

It is no secret that lots of Americans do not appreciate or honor the U.S. Constitution, and millions have no clue what it is, what it means, or why it exists. Among those we do not expect to find in that group are people trained in the law, and especially those who have been elevated to the judicial bench through appointment or election. Of course, every group has its eccentrics, even the judiciary.

To wit: Richard Posner, a judge in the United States Court of Appeals for the 7^th Circuit, who expressed an idea on Slate.com that baffles those of us who honor the country created for us 200-plus years ago, and the controlling document, the U.S. Constitution, the law of the land that has been the anchor keeping our republic relatively stable all these years. It has done so to the extent it has been followed, and its principles upheld by those specially trained folks who study the law.

Said Posner: “I see absolutely no value to a judge of spending decades, years, months, weeks, days, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” which he followed with: “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc. of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post-Civil War amendments (including the 14th), do not speak to today.”

Education, it seems, is frequently incomplete. For example, some doctors seem to have not had the class in Bedside Manner 101. News journalists often appear not to have heard the idea that news reporting requires impartiality and accuracy. Many teachers at all levels do not understand that their job is not indoctrination, but the presentation of, and assistance in helping students understand their subject.

Posner apparently missed the class where it was discussed how the Constitution could be improved through amendments, and also where one should have learned about the concept of principles, like those set forth in the Constitution.

A principle, in this sense, is a broad concept, not merely a list of specifics. For example, the First Amendment to the Constitution guarantees the right of free speech, the freedom of religion, etc. to all Americans, and the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Constitution is not intended to limit its protections to only those threats that existed in the 1700s, but also to any that may arise thereafter. 

Giving Posner credit not substantiated by his comment, let us assume that he understands that a nation must have laws. Since he does not respect the fundamental law that now exists, if we take his argument that the Constitution is old, outdated and therefore useless, what are we supposed to replace it with? Whatever ideas are the most popular? Or the ideas that a particular group of judges like best? Or, worse yet, what each judge and law enforcement official decides ought to be legal and illegal.

Would he prefer a set of rules proposed by the sitting president? Or, would he prefer a set of “living” rules that changes with the winds of popular opinion?

Posner’s article does not address that aspect.

Even with the protections of the Constitution, we see frequent over-stepping by government officials and agencies that ignore its limits on government, so without it how would the citizens of the United States be protected from government excesses? By what measures could we keep our government from becoming just another tyrannical body like communist China or North Korea?

The Constitution in Article III, Section 1, provides: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…” This runs contrary to the widely accepted idea that federal judges are appointed for life or until they decide to step down. Clearly, the Framers foresaw that a judge might exhibit behavior other than “good Behaviour,” in which case he or she is subject to removal from the bench.

With that in mind, several judicial watchers have suggested that Posner’s idea of discarding the Constitution, the document he is sworn to uphold, warrants his impeachment, and also said that a Congress that took both Posner’s oath and its oath seriously would impeach him.

However, Posner is protected by the provisions of the very document he so disdains and wants done away with, the First Amendment’s protection of free speech, which was written not to protect speech with which we agree, but speech that is not popular to some, and even critical of the government. This includes criticism of the Constitution, even by someone so high in the judicial hierarchy as a federal Circuit Court judge.

Our freedoms are now under more serious attack than ever before since the nation’s founding, by political correctness and those who find some protections inconvenient, and now by some charged with defending them by upholding the Constitution’s protections.

Cross-posted from Observations

Notice: You are breaking one or more federal laws and/or regulations

Commentary by James Shott

Most of us probably think of ourselves as law-abiding, up-standing American citizens. We pay our taxes on time. We keep our drivers licenses and inspections up to date. We don’t shoplift, or take illegal drugs. We don’t murder, rob, rape or assault others. That’s the way law-abiding citizens think and act.

And yet, I am willing to bet some money that every one of us has breeched or is on the wrong side of some federal decree.

I say that with a high degree of confidence because there are so many of these edicts from on high that nobody – not you, not law enforcement, not even the judges at whose mercy we will find ourselves if charged for breaking one – knows them all.

You see, here in the Land of the Free there are between 3,600 and 4,500 federal statutes that impose criminal sanctions, according to Michael Cottone, writing in the Tennessee Law Review.

As bad as that is, the ridiculously high number of federal laws pales in comparison to the number of regulations created by administrative agencies that carry criminal penalties, maybe as many as 300,000 of them.

With that knowledge, the old maxim “ignorance of the law is no excuse” is now a mere absurdity.

Of course, if we actually were to follow the dictates of the U.S. Constitution – a quaint idea, these days – at least some of those 300,000 regulations aren’t valid, since the only authorized law-making entity at the federal level is the Congress, and the Constitution does not authorize the Congress to abdicate that duty, and pass it along to the excessive number of unelected bureaucrats in the too-many Executive Branch agencies, departments, administrations, commissions and offices.

The Constitution sets forth the following: Article I, Section I: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” That’s about as plain as it can be. Notice it does not say, “except where Congress decides to cede that authority to the Executive Branch.”

Some laws are downright stupid, or sometimes are applied stupidly:
* A child saved a woodpecker from her family’s cat and was fined $535 under the migratory bird law.

* A 66-year-old retiree went to prison because he didn't have proper paperwork for orchids.

Some are irrational; others are conveniently broad and through twisted reasoning are used to punish American individuals and businesses. Consider the case of Gibson Guitars: On August 24, 2011, agents of the federal government executed four search warrants on Gibson manufacturing plants in Nashville and Memphis, Tennessee, where they seized pallets of wood, electronic files and finished guitars. Other than making excellent musical instruments, what had Gibson done?

Public servants in the Department of Justice determined that using wood from India that was not finished by workers in India is illegal, not by U.S. law, but because of the way the DOJ interpreted Indian law. The feds argued that Gibson violated the Lacey Act of 1900, which outlaws the use of plants and wildlife that have been taken or traded in violation of foreign law.

Apparently, Gibson is supposed to have known that Indian companies broke Indian law and sold wood illegally, thereby making Gibson subject to prosecution in the U.S. Seriously.

CEO Henry Juszkiewicz said Gibson competitors also use this same wood, and wondered why his company had been singled out. Fair question. Regardless, Gibson paid $300,000 to avoid criminal charges, was forced to make a "community service payment" of $50,000 to the U.S. National Fish and Wildlife Foundation to promote conservation and development of tree species used in making musical instruments, as well as withdraw claims to $262,000 worth of exotic woods seized by federal authorities.

It is unfair and oppressive to hold taxpaying citizens to the impossible standard of knowing and obeying every one of the hundreds of thousands of laws and regulations that might affect them, but in addition to that, perpetuating circumstances that allow prosecutors to haul people into court and potentially fine or imprison them on the flimsy basis that they should actually know all these decrees is outrageous, although Mussolini, Pol Pot, and Stalin would approve.

"The criminal code today is so vast and complex that judges and lawyers have a lot of trouble discerning what's legal and what's illegal," John Malcom, a senior legal fellow at the Heritage Foundation, told the House Judiciary Committee. "What hope do ordinary citizens have?" The government should be required to identify every federal crime, he said, and make that list easily accessible and free to the public.

National Association of Criminal Defense Lawyers president Steven Benjamin testified that when the average citizen cannot figure out what is illegal, "that is unfairness in its most basic form. We have become addicted to the use of criminal law as a blunt instrument to control social and economic behavior."

George Terwilliger, former deputy attorney general in George W. Bush’s administration, thinks Congress should pass one overriding law that requires proof of intent for any federal crime.

Contact your representative and senators and tell them to implement the Malcom and Terwilliger recommendations.

The United States of America: “a nation of laws, not a nation of men”

 Commentary by James Shott

A primary element that has separated the United States of America from virtually every other nation in history is the concept of it being “a nation of laws, not a nation of men.”

“A nation of laws” means that laws, not people, rule. Everyone is to be governed by the same laws, regardless of their station; whether it is the most common American or Members of Congress, high-ranking bureaucrats or the President of the United States; all must be held to the just laws of America. No one is, or can be allowed to be, above the law.

This idea was paramount in the complex process of establishing the United States of America, a young nation whose brave leaders had put everything on the line to escape the tyranny and oppression of the British Crown, which at the time was a nation ruled by people, in the person of King George III.

The Founders wrote restrictions into the Constitution against bills or laws of attainder, which are laws that do not apply equally to everyone, but target specific persons or groups in their enforcement, and are also known as “bills of pains and penalties.” In the hands of corrupt officials, these laws could be used as a weapon that would give an incumbent politician a major advantage over anyone else.

Can there be a better way for a nation to deal with its citizens than treating all of them equally under the law? About the only people who would disagree with this concept are those who are in a position, or want to be, to abuse the law and use their official positions unfairly, or those who benefit from that abuse.

Sadly, there are plenty of these un-American folks on the loose.

If laws are too numerous, abusive, designed to help or penalize one group at the expense of others, that nation is not a nation of laws.

A nation of laws will not permit or tolerate laws designed for reasons other than justice, and it will not permit or tolerate laws that are ignored or selectively enforced because of some official’s political whim.

"We're a nation of laws, not of men and women," Senate Majority Leader Harry Reid declared, talking about a Nevada rancher refusing to pay grazing fees on land he and his ancestors grazed for free, until recently. Someone needs to remind Sen. Reid that what is good for the goose is good for the gander. He condemns one of his constituents for not obeying the law, but himself failed to bring a federal budget before the Senate for years, as required by Article I of the US Constitution.  He has violated his oath of office and terms of the Constitution, and has done so without penalty.

Attorney General Eric Holder earned the wrath of a federal judge for directing prosecutors to pursue shorter prison sentences for drug crimes before new guidelines for sentencing had been approved. “The law provides the Executive no authority to establish national sentencing policies based on speculation about how [the U.S. Sentencing Commission] and Congress might vote on a proposed amendment,” Judge William H. Pryor, Jr. remarked. AG Holder also advised state Attorneys General that they do not have to enforce laws they disagree with, which essentially renders laws meaningless. Apparently, Mr. Holder thinks only those laws individual government officials believe in are important. He does not have authority create these policies.

And then there is the President of the United States, Barack Obama. He who rules by Executive Order is at the top of the list of those destroying the ideal of  “a nation of laws.”

It’s not about the good intentions of an Executive Order; it’s about process, and the fact that in the United States we have a detailed process for changing laws, and that process does not empower the president to do so unilaterally. Congress must amend a law, or the judiciary can strike down an unconstitutional law.

So, when the Affordable Care Act (ACA) that the president so strongly advocated came up far short of the miracle we were told it would be, Mr. Obama suspended parts of the law to mitigate the harm it would cause, but that is not allowed by the Constitution. It ought to strike everyone as dangerous when the president says things like if Congress won’t do what he wants, he’ll use his pen to do it through an Executive Order. Perhaps he does not understand that the executive branch is equal to the legislative branch; the president is not more powerful than the Congress.

Speaking of Congress, it’s habit of shirking its law-making duty by passing legislation that enables administrative agencies to create and implement rules with the force of law goes a long way toward undermining the “nation of laws” concept. The Founders made Congress the law-making branch of the government, and did not allow for Congress to pass that duty to the executive branch.

The sad truth is that the United States is not functioning as a nation of laws today. That status must be restored, and soon, or our very freedom is at risk.


Cross-posted from Observations