Category: Federalist Papers

Are Angels Watching, or Is the NSA?

By , November 6, 2013 11:51 am

Madison said it best,

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Alex Tabarrok rifs on that theme at Marginal Revolution when he asks Did Obama Spy on Romney? He answers his own question:

No. Some people claim that President Obama didn’t even know about the full extent of NSA spying. Indeed, I imagine that President Obama was almost as surprised as the rest of us when he first discovered that we live in a mass surveillance state in which billions of emails, phone calls, facebook metadata and other data are being collected.

Who knows? As Tabrrok reminds us, the NSA listened in on Angela Merkel’s phone calls. What if Romney called her during his 2012 campaign? In any case, he’s certainly right when he says that “Men are not angels.” Nevertheless, Tabarrok doesn’t think the NSA forwarded any tapes on to the Obama campaign. Still, “Men are not angels,” right?

Did the NSA use the information they gathered on Mitt Romney and other political candidates for political purposes? Probably not. Will the next president or the one after that be so virtuous so as to not use this kind of power? I have grave doubts. Men are not angels.

The Nixon administration plumbers broke into the offices of Daniel Ellsberg’s psychiatrist in order to gather information to discredit him. They busted into a single file cabinet (pictured). What a bunch of amateurs.
The NSA has broken into millions of file cabinets around the world.

Nixon resigned in disgrace. Who will pay for the NSA break-ins? (Emphasis added)

Limited Government Via Incremental Politics

By , October 21, 2013 10:09 am

George Will (who, by the way, is speaking at BYU tomorrow) nails it in his October 18, 2013, column:

[Barack Obama] and some of his tea party adversaries share an impatience with Madisonian politics, which requires patience. The tea party’s reaffirmation of Madison’s limited-government project is valuable. Now, it must decide if it wants to practice politics.

Rauch hopes there will be “an intellectual effort to advance a principled, positive, patriotic case for compromise, especially on the right.” He warns that Republicans, by their obsessions with ideological purity and fiscal policy, “have veered in the direction of becoming a conservative interest group, when what the country needs is a conservative party .”

A party is concerned with power , understood as the ability to achieve intended effects. A bull in a china shop has consequences, but not power, because the bull cannot translate intelligent intentions into achievements. The tea party has a choice to make. It can patiently try to become the beating heart of a durable party, which understands this: In Madisonian politics, all progress is incremental. Or it can be a raging bull, and soon a mere memory, remembered only for having broken a lot of china. Conservatives who prefer politics over the futility of intransigence gestures in Madison’s compromise-forcing system will regret the promise the tea party forfeited, but will not regret that, after the forfeiture, it faded away. (Emphasis supplied)

(Wills’s visit reminds me of a couple of other media luminaries who stopped by to chat when I was at BYU, including to David Halberstam, in the Marriott Center, and Bob Woodward, in the Wilkinson Center Ballroom. I read Halberstam’s The Best and the Brightest as a consequence of his visit.)

The Court Upheld the Affordable Care Act: Some Good News

By , June 28, 2012 11:07 am

For all of you exulting about the Court upholding the Affordable Care Act via Congress’s enumerated powers to tax and spend, as Wisconsin law professor Ann Althouse says, “Let’s not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.” She goes on to talk about how the Court applied the brakes on the seemingly ever-expanding Commerce power. Worth a read” target=”_blank”>Wisconsin law professor Ann Althouse says,

Let’s not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

She goes on to talk about the brakes the Court applied on the seemingly ever-expanding Commerce power. Worth a read.

Scalia Hits The Nail — And Hard

By , June 28, 2012 9:50 am

From Scalia’s dissent (at page 190 of the opinion), joined by Kennedy, Alito, and Thomas, in the Affordable Care Act case:

The Court today decides to save a statute Congress did
not write. It rules that what the statute declares to be a
requirement with a penalty is instead an option subject
to a tax. And it changes the intentionally coercive sanction
of a total cut-off of Medicaid funds to a supposedly
noncoercive cut-off of only the incremental funds that the
Act makes available.

The Court regards its strained statutory interpretation
as judicial modesty. It is not. It amounts instead 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. It makes enactment
of sensible health-care regulation more difficult, since
Congress cannot start afresh but must take as its point of
departure a jumble of now senseless provisions, provisions
that certain interests favored under the Court’s new design
will struggle to retain. And it leaves the public and
the States to expend vast sums of money on requirements
that may or may not survive the necessary congressional

The Court’s disposition, invented and atextual as it is,
does not even have the merit of avoiding constitutional
difficulties. It creates them. . . .

Hurrah for the limits the Court imposed on the Commerce Clause. Boo because the Court struggled so hard to find a tax. Double boo on a Congress that didn’t have the guts to call it a tax in the first place.

And Part of the Reason is the Doctrine of Separation of Powers!

By , February 24, 2011 9:32 am

Two quotes from this piece of campaign literature posing as journalism should be enough.

First, the writer, mischaracterizes Citizens United:

The nonprofit group Common Cause has complained that the controversial Citizens United v. Federal Election Commission decision on campaign financing last year – on a narrow majority backed by Thomas and Scalia – opened the door to heightened corporate contributions from the Koch empire. (emphasis supplied)

No, Citizens United only opened the door to independent corporate expenditures on things like political ads and such.

Second, the writer betrays an unfamiliarity with the basic constitutional doctrine of separation powers when he writes,

The group’s appeal for legislation faces political as well as potential constitutional hurdles, partly because members of the Supreme Court are now the final authority on the appropriateness of their ethical behavior. Decisions to recuse, or step away from deliberations, by tradition have been left up to the individual justices at the center of any complaint, contrary to the practice on most state supreme courts. (emphasis supplied)

The Supreme Court has always been the final authority on the ethical behavior of its members–unless and until such behavior warrants impeachment. To have it otherwise, would be to allow Congress the power to meddle in the affairs of the Court for political purposes, something the law professors involved in this bit of political theater and preemptive action should admit they’re doing.

I’m just guessing here, but I’m willing to be that you can look high and low and still won’t find any of the names of these 700 busybodies on a letter of this sort decrying the actions of a liberal Justice.

Blogging the Federalist Papers – #1 (Hamilton)

By , February 4, 2011 5:56 pm

I began blogging the Federalist Papers on January 19, with a post on #47, one of the reading assignments that week for my undergraduate class, American Government and Society. At the time, I had assigned #’s 10, 47, 48, 51, 70, and 78. In the rush of the time, I was only able to blog on #47. Things have settled down now, so I’ll begin in earnest and start at the beginning. Whether you find what I write interesting, I can promise you that the Federalist Papers are just that. And these times that’s a bonus because the Papers are already so essential to understanding the Founding; that they are also a fun read is delightful icing.

By the way, you can find many free copies of the Federalist Papers online in pdf format. For this exercise, I’m using the one put out by Penn State. For those who may not know, the Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the nome de plume Publius.

Hamilton begins #1 with a call for seriousness in the public’s examination of the new Constitution recently drafted in Philadelphia, and he’s not shy in proclaiming the importance of what is at stake:

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

He continues,

. . . a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

Possibly because he feels the moment is so important, he’s also not shy about calling to account those who oppose the ratification of the new document, especially those whose motives maybe be base and who want to make sure they can remain big fish in a small pond because they can’t be sure they’ll be allowed to swim in the big one contemplated by the Constitution. Thus he cautions the public to be aware of

a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

He doesn’t stop there, of course. Hamilton is careful to recognize that not all who oppose the new form of government do so out of base motives, that some, even many, do so “actuated by upright intentions”; indeed, he admits,

Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question.

But in admitting this, he concedes no ground. He goes on the criticize the opposition’s “loud . . . declamations and . . . bitter . . . invectives.” And then, in a flourish about the value of good government unjustly stigmatized by people he characterizes has having “an over-scrupulous jealousy of danger to the rights of the people,” he argues that we forget that

the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. . . . that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. (emphasis supplied)

I think I know what he means and who those words would apply to today. What do you think?

So Now the Constitutionality of Obamacare is “A Very Difficult Question”?

By , February 4, 2011 12:53 pm

For the longest time, supporters of Obamacare in general and the individual mandate in particular have criticized constitutional arguments against the law as unserious. Declares Edwin Chemerinsky, dean and distinguished professor of law at the University of California, Irvine School of Law,

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional.

That’s changed, as Josh Marshall noted in December.

And with that, the goal posts move. Now the argument is that the recent Federal District Court rulings against the bill will move slowly through the appellate court system, allowing support for the bill to grow. In fact, that’s the government’s strategy at this point, according to the report. Will the stall work? It just might. The report in Bloomberg quotes Sidley Austin attorney Carter Phillips opining on the probability that the Supreme Court will fast track the cases (2 for, 2 against at this point). With certitude that would make Chemerinsky proud, Phillips, who has argued more than 60 cases before the Court, says the chances are “zero.” And why does he say that?

I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law. (emphasis mine)

So arguments that once had no merit are now “very difficult question[s].” Wonder what Chemerinsky thinks?

Good Idea, Bad Execution

By , February 1, 2011 9:49 am

In an effort to make the case that the so-called Individual Mandate under Obamacare is unconstitutional, a group of South Dakota state lawmakers introduced a bill that would require South Dakota citizens 21 and over to buy a firearm “sufficient to provide for their self-defense.” In explaining the purpose behind the proposed law, Rep. Hal Wick (R-Sioux Falls) said,

Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance.

He should require citizens–including himself–to buy and read a pocket Constitution: States, unlike the Federal government, do not have enumerated powers under the U.S. Constitution. The knock against the Individual Mandate is that it exceeds the reach of Congress’s enumerated and implied powers.

Blogging the Federalist Papers – #47 (Madison)

By , January 19, 2011 10:18 am

I’m reading the Federalist Papers for a class I’m teaching. I won’t write about them in chronological order because I’m teaching them as they relate to what we’re studying at the time. For example, this week we’re studying the three branches of government, separation of powers, and checks and balances. Thus, we’ve read Numbers 47, 48, 70, and 78.

In #47, Madison discusses the separation of powers and spends much of his time addressing his opponents’s argument that, he writes, the proposed Constitution violates

the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it
is said, seems to have been paid to this essential precaution in
favor of liberty.

Madison acknowledges the truth upon which “the objection is founded,” but argues, of course, that the charge is ill founded and wrong, appealing first to Montesquieu, then to the constitutions of each of the 13 colonies to prove his point. He ends by writing,

I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. (emphasis supplied)

In #48, Madison says he will show why the same doesn’t apply to the document he helped create.

Key quote from #47: “where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.”

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