State of the Constitution

Clay Olsen | September 17, 2013

It has been 226 years since the birth of our Constitution. Before taking their positions of power, politicians must swear to uphold the Constitution. Unfortunately, politicians and/or lawyers tend to read the law as something to work around (or sometimes, to step over) instead of looking at the intentions of the law. It is claimed that the Constitution is “living and breathing”. Because of this, our Constitution has strayed away from its original purposes. These intentions are beautifully presented by Mark Levin in his new book, “The Liberty Amendments: Restoring the American Republic.”

Levin argues for a state convention, as written in Article V, to restore the Constitution as intended. The Framers envisioned a small federal government; yet today it is the “nation’s largest creditor, debtor, lender, employer, consumer, contractor, grantor, property owner, tenant, insurer, health-care provider, and pension guarantor.” The Framers wanted a federalist system in which the federal government was granted powers that are “few and defined” whereas the state governments receive powers that are “numerous and indefinite.” Today the federal government is involved in your life through rules and regulations at an extent that is mind-boggling. In light of this, it is safe to say that federalism is dying.

Congress has become an entity that operates through pork-filled bills that are thousands of pages long that are passed in the dark of night. Is it right for a democracy to pass laws that can never be read by its people and occasionally, are never read by those passing the law (Nancy Pelosi: “We have to pass [Obamacare] to figure out what’s in it”)? Keep in mind, if you do not follow a rule or regulation found somewhere in these bills, you are liable even if you were unaware of its existence. With bills like these being passed without restraint, it is no wonder our national debt has now passed $17 trillion. The path we are on is unsustainable and change, change that fixes the problem, must occur.

The executive branch has far outgrown its original design. Because the branch is lead by a single man, the Framers were careful not to give much power to the presidency. However, out of the executive branch has grown what could be called a fourth branch: the bureaucracy. Thousands and thousands of unelected officials are given broad power by Congress to regulate your life as much as possible.

The Supreme Court has also gained much more power than the Framers intended. Through Marbury v. Madison the court gave itself the power of judicial review (the power to deem laws unconstitutional). Thomas Jefferson wrote that if the Supreme Court was given the power to have the final say on what laws are constitutional and what laws are not, it “would make the Judiciary a despotic branch.”

We, humans, are imperfect. This was something the Framers understood and counteracted with checks between the three branches and federalism between the states and the federal government. To think that nine people, chosen from among us, have the final authority on laws and cannot be overridden is absurd. Just because they “hold law degrees from prestigious schools, wear black robes, and are each referred to as ‘Your Honor’ does not change the fallibility of their nature.”

And this imperfectness can be seen throughout the court’s history. The Supreme Court’s 1856 decision in the Dred Scott v. Sanford case was appalling. They ruled that an African American slave was the property of its “owner.” But, since it was the “almighty” court’s decision, it became the law of the land. In Plessy v. Ferguson the Supreme Court authorized racial segregation. In the Korematsu v. United States case, the court approved FDR’s decision to place tens of thousands of Japanese Americans in internment camps without due process. It is clear that the court has become more powerful than the authors of the Constitution ever imagined. The Court must be checked.

So what is the plan? Well, there are two ways to amend the Constitution, and it is very important that you know why there are two ways. Originally proposed, the power to amend the Constitution was to be given to Congress alone. However, the Virginia governor, Edmund Randolph, during the Constitutional Convention, suggested that there should be a way to amend the Constitution without having to go through the federal government. George Mason of Virginia and many others strongly supported this. They believed that a federal government that was growing in power would not vote to restrain itself. Therefore, the proposal was agreed upon and inscribed within Article V.

Article V states that the Constitution can be amended by two thirds of both houses of Congress or by “Legislatures of three fourths of the several States or by Conventions in three fourths thereof.” Levin’s proposal is to amend the Constitution through the state legislatures so that we can restore the American republic and put the federal government back where it belongs. In his book he also offers several amendments to consider at a convention that he believes will help shift power back to the states as well as to the individual.

Some may say that this is just a crazy idea. They will say that all that we need is to elect the right president or the right congressmen or appoint the right justices. Those are all good objectives, but we cannot sit around and wait for these things. We must act. We must do this so that we will not have to tell our grandchildren, “Sorry, we were just waiting for the right politician to come along.” The Framers of our Constitution gave the states this power for a reason; and that reason is upon us.

The Liberty Amendments: Restoring the American Republic by Mark R. Levin

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HIGHLIGHTS: On SCOTUS Decisions in Windsor & Hollingsworth

Photo Courtesy of The Atlantic Wire

Danny Zeng | June 26th, 2013

It’s all over the news, so I’m not going to cover the basics but instead dive straight into these cases. Just in case you were living under a rock though, 1) Section III of DOMA that defines marriage as a social institution between a man and woman for purposes of federal law was struck down today by the Supreme Court; 2) Prop 8 was vacated and remanded to lower court on procedural ground, namely that petitioners (proponents of Prop 8) were found not to have standing, so the Court did not consider the merits in Hollingsworth – meaning California will have same-sex marriage. Most are direct quotes and passages from the cases that I think are relevant for the sake of understanding different arguments. I expounded on some of them with my own comments and explanations. I also put a heavier emphasis on Windsor because it includes arguments on merits and not just on procedural jargons. I know everyone’s busy and won’t have the chance to go through 100 pages of legal writing (I did – don’t judge), which is why I “sparknoted” the cases for you into 4 pages! My goal is to stimulate a conversation about these cases using highlights from original documents and to let more people know what they are and are not about.

UNITED STATES VS. WINDSOR (DOMA SECTION 3)

KENNEDY, MAJORITY

“By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States…” but the federal government could pass “limited federal laws that regulate the meaning of marriage in order to further federal policy,” but DOMA goes too far.

“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens…the Federal Government, through our history, has deferred to state law policy decisions with respect to domestic relations…The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning” BUT “Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.” What? Did I miss something? Kennedy all the sudden slams on a gas pedal that’s going 90mph on  a state highway only to hit I-10 and starts to lose steam. His federalism argument stops short of arguing that states should be able to decide on marriage altogether as what Justice Alito alludes to in his dissent. Instead, Kennedy changes gear a little and attempts a different set of arguments …

“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence”

“DOMA’s principal effect is to identify a subset of state ­sanctioned marriages and make them unequal. The prin­cipal purpose is to impose inequality, not for other reasons like governmental efficiency.”

“It [state enactment of marriage equality laws] reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving under­standing of the meaning of equality”

“The avowed purpose and practical effect of the law [DOMA] here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States”

“And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.”

“This requires the Court to hold, as it now does, that DOMA is unconsti­tutional as a deprivation of the liberty of the person pro­tected by the Fifth Amendment of the Constitution”

“While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amend­ment makes that Fifth Amendment right all the more specific and all the better understood and preserved”

ROBERTS, DISSENT

There is no evidence that DOMA “codifies malice” or that “no legitimate government interests.” Deference to the legislative branch – Roberts does not address heightened scrutiny needed to consider for issues of sexual orientation. Scalia and Alito dodge this line of reasoning as well and defer to rational basis. This almost rings Robert’s framework in the Obamacare decision: it’s not the court’s prerogative to decide on political questions best left to other branches of government

“I would not tar the political branches with the brush of bigotry.” Roberts is concerned about the Court having to adjudicate on states’ definitions of marriage in the future; he attempts to circumscribe the bounds of the majority opinion.

SCALIA, DISSENT JOINED BY THOMAS

“The ‘prudential’ discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not.” Scalia takes issue on majority’s interpretation of judicial review and its logic on Windsor’s standing.

“The ‘judicial Power’ is not, as the major­ity believes, the power “‘to say what the law is,’” – only when the case has actual standing to sue, which Scalia believes not. The justice reasons that Windsor had already won her case at the district level. The book should have closed there.

“If a President wants to insulate his judgment of unconstitu­tionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.” [emphasis mine] Scalia is saying that of course the court has the power to judicial review but that is not contingent on say Obama administration refusing to defend DOMA

“If Congress can sue the Executive for the erroneous application of the law that ‘injures’ its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that ‘in­jures’ the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless” – This goes back to Scalia’s dissent on Windsor ever having standing because if so, this would lead to dog-eat-dog litigation between Congress and White House…

…Congress already has numerous tools to ensure enforcement i.e. power of the purse and power to confirm presidential appointees. “Our system is designed for confrontation” leave it to political branches

“Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faith­fully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.” – classic sass from Scalia…Congress should confront the President if he fails to enforce the laws not the Court

“The decision is based on Fifth amendment due process grounded in liberty not exclusively or primarily on Fourteenth Amendment. “In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality.” Tier scrutiny elevates the ground for judicial consideration because such case considers sexual orientation and sexual relationships, something that the majority had done; but Scalia disregards that and judges based on the lowest threshold: rationality

“DOMA avoided all of this uncertainty by speci­fying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision” Scalia fights back with a reason for section III definition – to provide uniformity to federal law enforcement

“Some might conclude that this loaf could have used awhile longer in the oven. But that would be wrong; it is already overcooked.” I love this quote…Scalia is referring to “substantive due process” a complex class of constitutional jurisprudence which he’s not a fan of – this goes along with his skepticism toward Kennedy’s reasoning in the majority. “The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages” I find this a strong objection to the majority’s opinion. What exactly is Kennedy basing his decision on in terms of precedence?

Scalia concludes that the decision helps no one, that “the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent” partly because he points out the flaw of the majority opinion – which I fully agree – that it comingles multiple constitutional logic that weakens its argument

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Tagging School Children Like a Boss

By Danny Zeng

Courtesy of Google Images

Using RFID technology to track students whereabouts is about the most perverse way to reap the benefits of the RFID technology imaginable, but that is exactly what two schools in San Antonio are currently doing according to the Texas Tribune – and they are thinking about importing that concept into ASID! These schools will have data and knowledge about whom students contact, what they do, whom they hang out with, etc. Sounds like big government yet? The alleged goal is to reduce truancy, but if we are willing to sacrifice privacy rights and common decency of treating school children as human beings, by frankly tagging and tracking them like animals, then what is the point of sending students to school in the first place? Schools will in effect evolve from a center of gravity for civic education, where students have opportunities to gain community service experience, learn social skills, hone on leadership abilities, practice communication and organizational savvy, to a indoctrination factory that campaigns against personal liberty and privacy. Instead of educating students about personal responsibility and care for one’s community, we are introducing students to a new world of technocracy, the worst kind, where we cultivate this notion that every problem can be solved by heartless, brainless, emotionless machinery and gadgetry for cheap.

Currently, the program affects more than 6,700 students. If successful – seems to be framed purely on a cost ground – the program can be potentially expanded to 112 schools with a reach of over 100,000 students across the state. According to the schools, the new “smart” chip intends to increase safety and security, increase attendance, and to provide “multi-purpose” student IDs to students. The schools emphasize the cost-saving potential of the technology and the improvement to safety. I call that unnecessary playing with emotions; parents can be easily demagogued into throwing money and liberty away in the name of safety for their children. These goals simply ignore the real issue: encroachment of privacy rights. I would go as far as to argue that there should be constitutional cause of concerns for these types of programs, namely First and Fourth Amendment violations. If we have a truancy issue, I say we try to resolve that by engaging the parents. If we have a safety issue, I say we encourage more PTA actions, student awareness and collaboration with neighborhood police. If we are bleeding money away as result of truancy, I say we self-reflect and go after the root cause of the problem – how to draw students back to school – and to not ignore the tough issue and make a weak attempt at curing the symptom and not the disease all the while poisoning the civic culture of next generation of leaders for our state and our country.