Tag Archives: government

The Constitution: Who Needs It?

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Certainly not our Progressive Supreme Court Justices.  Justice Ruth Bader Ginsberg doesn’t even think our Constitution is a worthy for others drafting a new one:

I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.

I might look at the constitution of South Africa.  That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary.

The South African constitution is interesting for how it treats individual rights and Justice Ginsburg’s independent judiciary.  There’s this on rights [emphasis added]:

When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law.

Their Constitution notes this in its Preamble:

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic

It wasn’t even adopted directly by the people, as ours was, just by their government.

Their Constitution notes this about their Bill of Rights [emphasis added]:

7. Rights.-
( 1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
…
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill

Here is what Section 36 says about limiting those “Rights.

36. Limitation of rights.-
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

The Government gave, the Government hath taken away.

I won’t go into the vasty enumeration of “fundamental” rights (34 pages worth!), that is an enshrinement of “rights” that are the fallout of individual decisions made under our Creator-given and inalienable ones.

Now here is Justice Ginsberg’s “independent” judiciary

(4) Only the Constitutional Court may-
(6) decide on the constitutionality of any amendment to the Constitution:

And this [emphasis added]

173. Inherent power.-
The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice….

This isn’t “independent.”  This is superior, the final despot.  The people aren’t to be allowed to decide for themselves what their Constitution will say.  Ultimately, the people’s representatives will not be permitted to make the law in their name—the courts’ common law will overwhelm.

This is what a Progressive Justice of the Supreme Court thinks is a superior constitution.

Contradictions

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In an energy policy article in The Daily Caller, Deneen Borelli raises some interesting disconnects between President Obama’s rhetoric and his actions.  She points out the failures engendered by his contradictions:

Despite his class-war rhetoric, Obama’s command-and-control energy policy drains our budget to reward crony capitalists such as General Electric CEO Jeff Immelt and his fellow presidential jobs panel member and billionaire venture capitalist John Doerr.

Ironically, the Obama war on fossil fuels hurts hard-working Americans because high energy prices have a disproportional impact on middle- and lower-income households and jeopardizes U.S. manufacturing.

And although Obama has called for fairness and a level playing field, the mandates and subsidies for renewable energy he favors would stifle competition by picking winners and losers.”

Then she gets specific.

on energy

Obama’s call for more oil and gas drilling in his State of the Union address was meant to deflect attention away from his failure to approve TransCanada’s Keystone XL pipeline.

Obama’s energy policy excludes coal. Coal now provides approximately 45 percent of our electricity, but regulations generated by the Obama EPA are imposing significant costs on utilities, costs that are forcing some power plants to close and others to spend billions of dollars in order to comply. Those compliance costs will be passed on to consumers in the form of higher electricity prices.

Fossil fuels — coal, oil and natural gas — provide roughly 85 percent of America’s energy needs. Yet, despite the failure of companies such as Solyndra, Obama is doubling down on renewable energy by calling for a national renewable energy mandate, forcing the Department of Defense to buy enough renewable energy to power a quarter of a million homes

on jobs

The president’s refusal to allow construction of the Keystone XL pipeline, at a cost of an estimated 20,000 jobs….

Rule of Law, or Rule by Law?

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Mary Anastasia O’Grady writes about the Obama administration’s disregard for law through its decision to flout it on the subject of Obama’s cancellation of the Keystone XL pipeline, and Kevin Mooney writes about this administration’s disregard for law through its carefully selective enforcement vis-à-vis Federal voter registration law.

The Keystone law, an amendment (a rider in O’Grady’s terms) to the temporary payroll tax holiday bill passed last December, required Obama promptly to give thumbs up or down to the pipeline, and if he nixed it, he had to say why.  In his determination, Obama was explicitly enjoined by that law (which he signed, mind you) to consider the economy, energy security, foreign policy, employment, trade, and the environment.

In the event, Obama ruled the pipeline not to be in the national interest because of the State’s view that further environmental studies are required.  This directly contravenes the amendment, though, which specifically required that new environmental impact studies not be part of the consideration—there already having been three environmental studies completed in the last three years, each concluding minimal, if not trivial, impact.  O’Grady explains:

The three bullet points that cover this point in the rider couldn’t be much clearer: First, “the final environmental impact statement issued by the Secretary of State on August 26, 2011, satisfies all requirements of the National Environmental Policy Act of 1969…and section 106 of the National Historic Preservation Act.” Second, “any [O’Grady’s emphasis] modification” to the route “shall not require supplementation of the final environmental impact statement….” Third, “no further Federal environmental review shall be required.”

And so

…if the law is to be followed, since the president failed to make a national interest determination as specified in the rider, it means that “the permit for the Keystone XL pipeline…shall be in effect by operation of law.”

The only question, as O’Grady suggests, is whether Obama can be made to obey the letter and the spirit of that law—whether Obama believes in the rule of law, or in his rule by law.

In Louisiana, officials are attempting to follow Federal law, specifically the National Voter Registration Act of 1973, also known as the Motor Voter Law.  It seems that the election officials of Louisiana’s state government are following Federal law too zealously (a condition with which Arizona, Alabama, South Carolina, and others are quite familiar).

Obama’s lawsuits focus on the Motor Voter Law’s Section 7, which requires officials at state health and social service agencies, among others, to offer voter registration forms to all eligible adults, even if the same person visits the agency multiple times: that person is to get the forms at each visit.  The Feds have offered no evidence that this is failing to occur beyond the occasional honest error rate; what drew their eye, though, is the state’s adherence to Section 8 of the law.

Section 8 requires the state to purge its voter rolls of deceased and otherwise ineligible voters specifically to reduce the opportunity for voter fraud—which Progressives deny is happening at all.  It seems, though, that several Louisiana parishes have implausible voter registration rates: there are more registered voters in each of these parishes than there are people actually living in them.

The goal here is revealed by the “settlements” Obama’s administration has imposed on other states after similar suits were filed.  New Mexico, Indiana, Rhode Island, and others are now prevented from purging their voter rolls of any ineligible names until after the November elections.  Thus, the dead and other ineligibles, Democrats all, will be permitted to vote in the coming election.

Here, too, this administration’s choice between rule of law and rule by law is manifest.

Rights Upheld

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Last fall, I posted about a right-to-privacy case that involved police planting a GPS tracker in a suspect’s car without court sanction.  To briefly recap,  police wished to track the comings and goings of a suspected drug trafficker, so they obtained a search warrant for planting a GPS tracker on the suspect’s car.  In execution, though, the police had let the warrant expire before they acted on it, and then they planted the tracker outside the warrant’s jurisdiction.

The government argued that attaching the tracker to a car’s underside was too trivial a violation of property rights to matter, and further that no one who drove on public streets could expect his movements to go unmonitored.  Of course it was exactly this sort of cynical arrogance that contributed to our Founders’ writing into our Bill of Rights a requirement for the government to show cause to and get permission from a court before that government could invade and search an individual or his property.  Indeed, many of the government’s men understood this today; albeit they were breathtakingly careless in the execution: police had, in fact, obtained a warrant to attach the tracker, but within the District of Columbia.  However, they then installed the device after the warrant had expired and while the car was parked in Maryland.

Today, reports The Wall Street Journal, the Supreme Court handed down its ruling.  In a unanimous opinion, the Court said that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle—the Founders’ view, and American rights, were vindicated and upheld.

Still, the Court split in its opinion.  Justice Antonin Scalia, in the five-Justice majority opinion, held that the 18th century concept of “persons, houses, papers, and effects” included such private properties as 21st century automobiles in the 4th Amendment protection against unreasonable searches (and seizures).  Thus, the 4th Amendment is technology-agnostic: our rights appertain to us, not to our property.  But we knew that from our Declaration of Independence.

Justice Samuel Alito went even further, in a dissenting concurring opinion (signed  onto by the likes of Justices Elena Kagan, Ruth Bader Ginsberg, and Stephen Breyer).  Alito held that the warrantless (unwarranted?) GPS tracker implant not only violated the victim’s right of privacy, it violated his  “reasonable expectation of privacy,”  because, as the Court had held as long ago as 1967, “the Fourth Amendment protects people, not places.”

Alito was quite clear in his reasoning, as summarized by the WSJ at the above link:

…a property-based approach was too narrow to guard against the proliferating threats to personal privacy modern technology posed.

In broadening Scalia’s argument, we see that technology agnosticism, again, with regard to our rights and freedoms.

In the end, the original obtaining of a warrant, coupled with the administration’s argument  that the warrantless search was only a trivial violation, demonstrates this administration’s utter cynicism when it comes to the rights and freedoms of Americans—and the continued need for the 4th Amendment to be applied rigorously and zealously.

Sanctions and Trust

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Does his own party trust him anymore on sanctions against Iran—or anything else?

In a letter to President Obama (formally to his Treasury Secretary, Timothy Geithner), two Senators, Robert Menendez (D, NJ), Chairman of the Senate Subcommittee on Western Hemisphere, Peace Corps, and Global Narcotics Affairs, and Mark Kirk (R, IL), Member of the Senate Committee on Appropriations, felt constrained to remind Obama and his administration of Congress’ intent when it passed (and Obama signed into law) the recent Menendez-Kirk Amendment to the Comprehensive Iran Sanction, Accountability, and Divestment Act of 2010 (CISAD).  This amendment authorized oil and financial sanctions against Iran should Iran insist on continuing on their course to obtaining nuclear weapons.

We understand that the administration is drafting rules to guide the implementation of the law and we hereby seek to convey the legislative intent underlying certain terms and phrases in the amendment and to ensure that the positive developments that have occurred as a result of the amendment are buttressed  by the administrative rules[.]

The Senators opened their letter with the above.  Their concern arises from Obama’s attempt to eviscerate the amendment to CISAD while it was being developed, even though it was an amendment that Obama had urged and to which Menendez and Kirk had agreed, and then after that agreement, Obama’s repudiation of it (interestingly, following that repudiation the amendment passed the Senate by a 100-0 vote).  Menendez has separately advised Obama that, as a result of Obama’s…behavior, “This certainly undermines your relationship with me for the future.”

The Senators, via their letter, laid out the specifics of some of their concerns.  These included the administration’s definition of the “significant reductions” other nations might claim as a means of continuing to do business with Iran’s Central Bank and to trade for Iranian oil while avoiding the US response mandated by CISAD—the cutting off of those nations’ banks from the US economy.  The strict definition was laid out in that underlying law; the Senators do not trust the administration to hew to that definition in its new implementing rules.  The Senators spelled it out in their letter:

To ascribe more variable terminology to the definition of “significantly reduced” would diminish the ability of countries to understand and comply with the amendment.  An unevenly applied interpretation would also call into question the seriousness of the sanctions policy and send mixed signals to both Iran and our allies.

Menendez and Kirk also are concerned that Obama will use the “national security” waiver in the sanctions law to completely weasel out of applying the sanctions: they fear he won’t apply any waiver on a case-by-case basis, as the amendment requires, attempting instead a blanket waiver that prevents any sanctions anywhere.

It was not our intent that the term “waive the imposition of sanctions under paragraph (1)” as meaning only one waiver is needed to waive the imposition of all sanctions.  In other words, with one report to Congress, the President could decide that not institution will be subject to sanctions….

They concluded,

We would welcome an opportunity to discuss these points with you prior to the publication of the final rule for the Menendez-Kirk amendment.

The Senate no longer trusts this President; his own party no longer trusts him.  Where is the basis for trust on the part of anyone else?  In any event, Obama’s rules are due out this week.  Maybe we’ll see the effect of the Senators’ letter.