It's Good to Have a Constitution

Russell Roberts:

"As a Jew, it never ceases to amaze me that people think the most important lesson of the Holocaust is that anyone, even civilized Germans who love Bach and Beethoven, can become murderers. Or that the most important lesson is that hatred is wrong. Hatred is immortal. People say, 'never again' as if saying it is sufficient to prevent future holocausts. But saying it is not sufficient without limiting the power of government to imprison and kill people.

To me, the most important lesson of the Holocaust is that only governments can kill millions of people. Murdering millions requires absolute power. So I want governments to be weaker rather than stronger. That's why I like the First and the Second Amendments. And why I'm glad I don't live in Austria."

It is good to have a constitution, and especially good to have a constitution for a limited government. It is good that for the most part the judiciary sees the constitution as limiting government's power with respect to individual freedoms with respect to speech and religion. It would be very good if we could once again find Justices on the Supreme Court who thought the constitution also protected individual economic freedoms.

Political Boundaries Are Not -- and Ought Not Be -- Economic Boundaries

Don Boudreaux:

"Obviously, I would be better off if I or someone in my family were the bondholder. But my being an American doesn't mean that I benefit if the bond is owned by another American -- or that I suffer if the bondholder is not American. To imagine the contrary is to mistake the nation for the self or the family. It is neither.

Indeed, the nation isn't even the economy -- a fact that explains my indifference to the nationality of economic actors. Our economy isn't American; it's global. It should be reckoned as such."

It is very important to understand how aggregation hides relevant information and often distracts our thinking and analysis. Boudreaux's commentary is a useful illustration. There is no national economy that should be described in our conversations and analysis as an economic decision maker. Individuals are the economic decision makers in the world of economic affairs. Even when there are policy decisions taken by our national government, the decisions are the outcome of a political process by which the choices of many government officials determine the choice government makes. Perhaps thinking of a national economy, or thinking of society, as a decision maker need not lead to faulty analysis. But, it frequently does. It seems to me better, in general, to focus analysis on the choices of individuals.

Life, Liberty & the Pursuit of Happiness

George Will writes on why conservatives are happier than liberals:

"Conservatives' pessimism is conducive to their happiness in three ways. First, they are rarely surprised -- they are right more often than not about the course of events. Second, when they are wrong, they are happy to be so. Third, because pessimistic conservatives put not their faith in princes -- government -- they accept that happiness is a function of fending for oneself. They believe that happiness is an activity -- it is inseparable from the pursuit of happiness.

The right to pursue happiness is the essential right that government exists to protect. Liberals, taking their bearings, whether they know it or not, from President Franklin Roosevelt's 1936 State of the Union address, think the attainment of happiness itself, understood in terms of security and material well-being, is an entitlement that government has created and can deliver."

I think the contrast Will draws here is important. Many people today do seem to think that government's role in our lives is to do more than protect our individual and unalienable right to pursue happiness. Thomas Jefferson didn't. Recall the words he wrote in our country's Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. . . ."

I think government can be effective in protecting our individual rights to pursue happiness, as well as in protecting our individual rights to life and liberty. But government cannot create happiness or guarantee happiness for anyone. I think it is unfortunate that many today seem to believe it is the purpose of government to try to help us achieve happiness because government policies that seek such ends inevitably encroach on the very unalienable rights Jefferson wrote about.

Wal-Mart Laws

OpinionJournal:

"The announcement came in the form of two federal lawsuits filed by the Retail Industry Leaders Association against the state of Maryland and Suffolk County, New York. At issue are the 'Wal-Mart' laws that both jurisdictions recently passed, which would require a few large companies to pay more for their workers' health care. The lawsuits argue the statutes are 'discriminatory,' which may be the legal understatement of the year since both target only a few employers."

I'm not sure if the Supreme Court will find the Wal-Mart laws unconstitutional, but I think such laws should be seen as unconstitutional. Perhaps as violations of equal protection. Perhaps as violations of economic liberty protected by the 9th Amendment. Of course, the Court's copy of the Constitution seems to have a redacted 9th Amendment. So, perhaps the court could follow the lead of Lawrence v. Texas in it's reliance on substantive due proces by returning to the idea that the Due Process Clause broadly protects economic liberty as well.

Kelo Economics?

I ran across a post on a law school blog that seemed to argue in favor of the Kelo opinion on the grounds of positive externalities and economic efficiency. I think the analysis I found there is incorrect and I've posted my explanation over at Eminent Domain Institute. Here is my conclusion:

"On efficiency grounds, for the hypothetical being discussed, I conclude that the best efficiency policy is for government to offer a subsidy for preservation to reflect the marginal external benefit associated with option and existence values. I might be willing to accept the idea that the power of eminent domain is also consistent with efficiency, but ONLY IF 'just compensation' is defined to reflect the external benefit not reflected in the market value of the property."

The West Can't Save Africa

William Easterly:

"Kenyan Robert Keter, a former world-class runner, is busy investing the proceeds of the telecom venture CDR, which he co-founded in 2000 and ran profitably until the Kenyan government abruptly shut him down for no apparent reason. Keter was recruited into business by Monique Maddy, a Liberian entrepreneur with a Harvard MBA (who is now offering advice to Google on global anti-poverty programs). CDR was offering customers voice over Internet protocol long before the service was made mainstream by Skype and Vonage. The company did so well during its brief operation that Keter and his U.S.-based partners decided to raise money to help rebuild a school in his home village of Kericho, located in the tea-growing region of the Kenyan highlands. Keter also used part of his earnings to purchase a tea farm, where he employs more than 400 workers.

The West's focus on sensational tragedies obscures the achievements of people such as Patrick Awuah and Robert Keter, who are succeeding even against tremendous odds. Economic development in Africa will depend -- as it has elsewhere and throughout the history of the modern world -- on the success of private-sector entrepreneurs, social entrepreneurs and African political reformers. It will not depend on the activities of patronizing, bureaucratic, unaccountable and poorly informed outsiders."

We might add that development will depend on government that enforces property rights and contracts, and government that reduces predation instead of thriving on predation [ see, for example, Mancur Olson ]. Economic prosperity comes with economic liberty.

Lobbyists: Demand & Supply

Jeffrey Birnbaum:

"Although not every political battle yields $100 billion, the return on investment in lobbying is often so substantial that experts and insiders agree that Washington's influence industry will continue to thrive no matter how lawmakers decide to rein it in."

Why would we want to make the assumption that Congress wants to reign this stuff in? Suppose we ask whether applying a market analogy would be enlightening?

The special interests might be seen as expressing a demand for legislation. If so, then who would be the suppliers of legislation? Let's suppose the members of Congress are the suppliers of legislation. This would suggest that it would be very unlikely that the members of Congress will want to truly reign in much of this stuff at all. Doing so would significantly reduce their opportunity to supply legislation. Doing so would mean that many of the reasons they want to go to Congress would have to change.

It is the very nature of a legislature to want to pass legislation. If we want to see less special interest legislation, then I suspect we will have to turn away from Congress itself to get that accomplished. There are two other branches of government to consider, as well as the Constitution.

As I read the Constitution, truly constraining Congress to only specific enumerated powers should be a more effective way to constrain special interest demand and supply of legislation. And, probably, historically, this was the case. But, for this to work, I think the Judicial branch of government has to decide to strictly hold Congress to only the clearly enumerated powers. If the Court said that Congress could regulate interstate commerce, but not all economic activity, then the realm of demand and supply of legislation would necessarily be much reduced. It would be much more difficult, it seems to me, to think that Congress had the power to pay for street lights, sculpture gardens, and model rainforests. Unfortunately, in my view, the Judicial branch of government has done a very poor job, since about the time of FDR, holding Congress to the enumerated powers.

What about the executive branch? I think James Madison thought that the President would use the veto power to constrain Congress. But, this seldom seems to be the case these days. Instead, it seems the executive branch often sees itself just as much a supplier of legislation as does Congress.

If we want to see less special interest lobbying and influence in Washington, then I suspect we will have to have a citizenry and a Judiciary that want to hold Congress strictly to only enumerated constitutional powers.

Social Security -- It's Back

The Washington Times reports that even though President Bush did not mention social security in his state of the union message to Congress, his proposed changes are included in his budget request. Here is an interesting exerpt from the story:

"Mr. Schumer also took to the airwaves, saying Mr. Bush tried to sneak his proposal -- which also would slow the growth rate of Social Security benefits for wealthier Americans -- 'through the back door.' He said the president's plan wasn't popular with the young or the old, but that Mr. Bush wants to 'whisper' to his supporters that he's still pushing for it. "

I'm wondering who the young people are that Senator Schumer thinks don't like the President's proposal for social security? I seldom run across a student in my classes who thinks we should continue the present approach to social security.

Let's also not forget. If we continue with the present approach to social security, many of the young who will get stuck paying big time in the future, are like my son and not even able to vote against the politicians refusing to fix things.

Spying: "It Makes Sense Today"

John R. Schmidt:

"Levi said a traditional warrant procedure works when surveillance 'involves a particular target location or individual at a specific time.' Foreign intelligence, however, may in some situations require 'virtually continuous surveillance, which by its nature does not have specifically predetermined targets.' In these situations, 'the efficiency of a warrant requirement would be minimal.'

In approving a surveillance plan, 'judicial decision would take the form of an ex parte determination that the program of surveillance designed by the government strikes a reasonable balance between the government's need for the information and the protection of individuals' rights.'"

[. . . . .]

Based on everything we know, NSA's surveillance program would be approved. Even the president's critics generally acknowledge that, based upon what we know, the NSA program is "reasonable" in responding to the Al Qaeda threat.

Although Levi supported legislation in the foreign intelligence area, he rejected the position of Bush critics that the president's authority to order warrantless foreign intelligence surveillance can be limited by Congress to a statutory procedure. Levi told the Church Committee that the president has inherent constitutional authority to conduct such surveillance. Asked by Sen. Frank Church "if the constitutional powers in the area of foreign intelligence are exclusive to the executive or whether they are concurrent with the legislative branch," Levi replied:

"They are sufficiently concurrent so that legislation by the Congress would be influential . . . You are asking me whether I think there is presidential power beyond that, and my answer is `Yes.'"

[. . . .]

Giving a court the power to approve a reasonable surveillance plan proposed by the president gives everyone--the president and those in the executive branch who carry out the surveillance, members of Congress who have oversight responsibility, and the American people--greater assurance that constitutional rights are being protected.

It made sense when Edward Levi suggested it 30 years ago and it makes sense today."

Senator Coburn & Earmarks

George Will writes about Senator Coburn and earmarks. Here is one exerpt:

"When Coburn disparaged an earmark for Seattle -- $500,000 for a sculpture garden -- Sen. Patty Murray (D-Wash.) was scandalized: 'We are not going to watch the senator pick out one project and make it into a whipping boy.' She invoked the code of comity: 'I hope we do not go down the road deciding we know better than home state senators about the merits of the projects they bring to us.' And she warned of Armageddon: 'I tell my colleagues, if we start cutting funding for individual projects, your project may be next.' But Coburn, who does not do earmarks, thinks Armageddon sounds like fun."

I've asked this question before, and I'm sure I will want to ask it again: Which Article 1, Section 8 enumerated power of Congress says Congress has the power to spend money on a sculpture garden in Seattle?

And, then there's this:

"Coburn is the most dangerous creature that can come to the Senate, someone simply uninterested in being popular. When House Speaker Dennis Hastert defends earmarks -- spending dictated by individual legislators for specific projects -- by saying that a member of Congress knows best where a stoplight ought to be placed, Coburn, in an act of lese-majeste, responds: Members of Congress are the least qualified to make such judgments."

If members of Congress ever read Article I of our Constitution, why would they even think they should be paying for stoplights?

What Colleges Forget to Teach -- Liberty?

Robert P. George:

"For all their academic achievement, students at Princeton and Yale and Stanford and Harvard and other schools that attract America’s most talented young people rarely come to campus with a sound grasp of the philosophy of America’s constitutional government. How did the Founding Fathers seek, via the institutions that the Constitution created, to build and maintain a regime of ordered liberty? Even some of our best-informed students think something along these lines: the Framers set down a list of basic freedoms in a Bill of Rights, which an independent judiciary, protected from the vicissitudes of politics, would then enforce.

It’s the rare student indeed who enters the classroom already aware that the Framers believed that the true bulwark of liberty was limited government. Few students comprehend the crucial distinction between (on the one hand) the national government as one of delegated and enumerated powers, and (on the other) the states as governments of general jurisdiction, exercising police powers to protect public health, safety, and morals, and to advance the general welfare. If anything, they imagine that it’s the other way around. Thus they have no comprehension as to why leading supporters of the Constitution objected to a Bill of Rights, worried that it could compromise the delegated-powers doctrine and thus undermine the true liberty-securing principle of limited government.

Good students these days have heard of federalism, yet they have little appreciation of how it works or why the Founders thought it so vital. They’ve heard of the separation of powers and often can sketch how the system of checks and balances should work. But if one asks, for example, “Who checks the courts?” they cannot give a satisfactory answer."

Tyranny & Liberty

It seems to me Ayaan Hisri Ali has written an exceptional essay on tyranny and liberty:

Liberty does not come cheap. A few million Euros is worth paying for the defence of free speech. If our governments neglect to help our Scandinavian friends then I hope citizens will organise a donation campaign for Danish companies.

We have been flooded with opinions on how tasteless and tactless the cartoons are -- views emphasising that the cartoons only led to violence and discord. What good has come of the cartoons, so many wonder loudly?

Well, publication of the cartoons confirmed that there is widespread fear among authors, filmmakers, cartoonists and journalists who wish to describe, analyse or criticise intolerant aspects of Islam all over Europe.

It has also revealed the presence of a considerable minority in Europe who do not understand or will not accept the workings of liberal democracy. These people – many of whom hold European citizenship – have campaigned for censorship, for boycotts, for violence, and for new laws to ban ‘Islamophobia’.

The cartoons revealed to the public eye that there are countries willing to violate diplomatic rules for political expediency. Evil governments like Saudi Arabia stage “grassroots” movements to boycott Danish milk and yoghurt, while they would mercilessly crash a grassroots movement fighting for the right to vote.

Today I am here to defend the right to offend within the bounds of the law. You may wonder: why Berlin? And why me?

[ . . . . . ]

The issue is not about race, colour or heritage. It is a conflict of ideas, which transcend borders and races.

Why me? I am a dissident, like those from the Eastern side of this city who defected to the West. I too defected to the West. I was born in Somalia, and grew up in Saudi Arabic and Kenya. I used to be faithful to the guidelines laid down by the prophet Muhammad. Like the thousands demonstrating against the Danish drawings, I used to hold the view that Muhammad was perfect -- the only source of, and indeed, the criterion between good and bad. In 1989 when Khomeini called for Salman Rushdie to be killed for insulting Muhammad, I thought he was right. Now I don’t.

I think that the prophet was wrong to have placed himself and his ideas above critical thought.

I think that the prophet Muhammad was wrong to have subordinated women to men.

I think that the prophet Muhammad was wrong to have decreed that gays be murdered.

I think that the prophet Muhammad was wrong to have said that apostates must be killed.

He was wrong in saying that adulterers should be flogged and stoned, and the hands of thieves should be cut off.

He was wrong in saying that those who die in the cause of Allah will be rewarded with paradise.

He was wrong in claiming that a proper society could be built only on his ideas.

The prophet did and said good things. He encouraged charity to others. But I wish to defend the position that he was also disrespectful and insensitive to those who disagreed with him.

I think it is right to make critical drawings and films of Muhammad. It is necessary to write books on him in order to educate ordinary citizens on Muhammad.

I do not seek to offend religious sentiment, but I will not submit to tyranny. Demanding that people who do not accept Muhammad’s teachings should refrain from drawing him is not a request for respect but a demand for submission.

I am not the only dissident in Islam. There are more like me here in the West. If they have no bodyguards they work under false identities to protect themselves from harm. But there are also others who refuse to conform: in Teheran, in Doha and Riyadh, in Amman and Cairo, in Khartoum and in Mogadishu, in Lahore and in Kabul.

The dissidents of Islamism, like the dissidents of communism, don’t have nuclear bombs or any other weapons. We have no money from oil like the Saudis. We will not burn embassies and flags. We refuse to get carried away in a frenzy of collective violence. In number we are too small and too scattered to become a collective of anything. In electoral terms here in the west we are practically useless.

All we have are our thoughts; and all we ask is a fair chance to express them. Our opponents will use force to silence us. They will use manipulation; they will claim they are mortally offended. They will claim we are mentally unstable and should not be taken seriously. The defenders of Communism, too, used these methods.

Berlin is a city of optimism. Communism failed. The wall was broken down. Things may seem difficult and confusing today. But I am optimistic that the virtual wall, between lovers of liberty and those who succumb to the seduction and safety of totalitarian ideas will also, one day, come down.

The Politics of Spying

In The Washington Times:

"But in 1977, Mr. Carter and his attorney general, Griffin B. Bell, authorized warrantless electronic surveillance used in the conviction of two men for spying on behalf of Vietnam.

The men, Truong Dinh Hung and Ronald Louis Humphrey, challenged their espionage convictions to the U.S. Court of Appeals for the 4th Circuit, which unanimously ruled that the warrantless searches did not violate the men's rights.

In its opinion, the court said the executive branch has the 'inherent authority' to wiretap enemies such as terror plotters and is excused from obtaining warrants when surveillance is 'conducted 'primarily' for foreign intelligence reasons.'

That description, some Republicans say, perfectly fits the Bush administration's program to monitor calls from terror-linked people to the U.S.

The Truong case, however, involved surveillance that began in 1977, before the enactment of the Foreign Intelligence Surveillance Act (FISA), which established a secret court for granting foreign intelligence warrants.

Democrats and some Republicans in Congress say FISA guidelines, approved in 1978 when Mr. Carter was president, are the only way the president may conduct surveillance on U.S. soil.

Administration officials say the president has constitutional authority to conduct surveillance without warrants in the name of national security. The only way Congress could legitimately curtail that authority, they argue, is through an amendment to the Constitution.

The administration's view has been shared by previous Democrat administrations, including Mr. Carter's.

When Mr. Bell testified in favor of FISA, he told Congress that while the measure doesn't explicitly acknowledge the 'inherent power of the president to conduct electronic surveillance,' it 'does not take away the power of the president under the Constitution.'

Jamie S. Gorelick, deputy attorney general in the Clinton administration, agreed. In 1994 testimony before the House Permanent Select Committee on Intelligence, Miss Gorelick said case law supports the presidential authority to conduct warrantless searches and electronic surveillance for foreign intelligence purposes.

Earlier this week, however, Mr. Carter said it was 'ridiculous' for Attorney General Alberto R. Gonzales to say the spying is justified by Article II of the Constitution. "

Earmarks: The Ugly Truth

There's a story on earmarks at Harpers online that explains how the process works:

"Only later, after the approved bill had been shuffled off to the President for signature, could lawmakers and laymen alike peruse its contents in earnest. Scattered throughout the bill were hundreds of hastily inserted pages of “earmarks,” or allocations for local projects that are tucked into federal budgets. As approved at the November 17 appropriations meeting, the Foreign Operations bill had contained a mere nine earmarks. The omnibus measure, which was completed after two feverish days of work, allocated money for 11,772 separate earmarks. There was $100,000 for goat-meat research in Texas, $549,000 for “Future Foods” development in Illinois, $569,000 for “Cool Season Legume Research” in Idaho and Washington, $63,000 for a program to combat noxious weeds in the desert Southwest, $175,000 for obesity research in Texas. In the end, the bill’s earmarks were worth a combined total of nearly $16 billion—a figure almost as large as the annual budget of the Department of Agriculture and roughly twice that of the Environmental Protection Agency. It was the biggest single piece of pork-barrel legislation in American history.

Of who added these grants, no public record exists. Except in rare cases, members of Congress will refuse to discuss their involvement in establishing earmarks, and the appropriations committees have a blanket rule against commenting. Often it is difficult to discern even who is receiving the funds: earmarks are itemized in bills but generally without disclosure of the direct recipient—just a dollar amount, destination, and broad purpose. Indeed, in the matter of the $16 billion burglary, and the similar acts of mass theft plotted for this year, the only certainty seems to be this: that lawmakers and lobbyists collude to conceal, to the utmost extent possible, their actions from the American taxpayer, who serves as the ultimate benefactor to their chronic bouts of generosity."

Pretty ugly, eh?

Rhode Island Democrat Flat Tax

WSJ commentary today (subscription required) makes note of a proposal by Democrats in Rhode Island to go to a flat income tax. Here is an except that describes how the proposal is being pitched:

"And listen to how House Speaker William Murphy pitched the idea at a news conference: 'The ultimate goal is to put more money directly into people's pockets both by giving relief to those who need it and by making Rhode Island a more attractive place for business that will provide high-paying jobs for more Rhode Islanders.' What's going on here? Have the state's liberals all taken Art Laffer happy pills?"

I like the idea of a flat tax, and I'm happy to hear of the proposal. I've got one gripe though. When I hear a politician say the goal is to "put more money directly into people's pockets" I just can't help pointing out he seems to think the money is government's to begin with. I suggest a more accurate statement of the goal would be: "We simply want to leave more money in people's pockets."

McCain-Coburn

Senator Coburn has commentary in today's Wall Street Journal (subscription required) that explains why he will work to end the practice of Congressional earmarks:

"John McCain and I recently delivered a letter to our colleagues announcing our intention to challenge every individual earmark on the floor of the Senate. Many senators, staff and reporters have asked if we are serious. The answer is yes.

I am convinced that forcing hundreds or, if necessary, thousands of votes to strike individual earmarks is the only way to produce meaningful results for American taxpayers. Bringing the Senate to a standstill for as long as it takes would be a small price to pay for shutting down what Jack Abramoff described as Congress's 'earmark favor factory.' The battle against pork is crucial. Pork is the root cause of the unholy relationship between some members of Congress, lobbyists and donors. Inside Congress, the pork process is effectively a black market economy: Thousands of instances exist where appropriations are leveraged for fundraising dollars or political capital. It is delusional to claim Congress can redeem its relationship with K Street without eliminating earmarks. The problem is not lobbyists. The problem is us."

THE PROBLEM IS US. Yes, I agree with that, at least to an extent. The practice of earmarks seems to me to be a serious abuse of legislative power. The Senator writes: "Pork is a modern indulgence, not an ancient or noble tradition." Of course, earmarks are not a noble tradition, and in my view, they should not be described with a relatively mild term like "indulgence." When an individual member of Congress can designate the specific project and specific recipient that receives government funding, that is an abuse of legislative power.

But the problem is not just that legislators are choosing to abuse their power. It is also that over time the Supreme Court's view of the Constitution seems to allow Congress to abuse its power. Just take a look at some of the earmarks we've heard about. It seems to me quite a challenge to find the enumerated power in the Constitution for Congress to spend tax dollars on projects like creation of a model rain forest.

Laura's Iraq Journal

Laura Ingraham is in Iraq doing her radio show and keeping a journal. Here are some excepts from her journal:

"This has been an exhausting day- emotionally and physically. But then again, it's that way for the troops pretty much every day here. Bottom line: Iraq is a complicated, difficult, hard-to-understand place. But we need to make this work. There is hope and success amidst the sadness and suffering here. I smile when I remember the 34 year-old Iraqi businesswoman who ditched her car and took four busses to get to our interview to avoid being noticed by the terrorists. She owns her own engineering company with 14 employees and urged the American people not to leave Iraq . 'Please help us defeat these men,' she said. "

And:

"I then observed CPT Mike Tess and LT Emily Siegert in a meeting with the local mayor about ongoing infrasture projects-a new water tower, secondary school, and sewage pipes. This village doesn't look so hot by our standards-shabby buildings and bad drainage-but it it's very liveable by Iraqi standards. Mayor Abdul Hyder told me that the life now, compared to life three years ago, was "like a dream" for most Iraqis. "Yes, there are problems," he said," but there is also freedom." His gratitude for all that Coalition forces have done for Iraq seemed heartfelt. At the same time, he told the patrol leaders that villagers were sometimes afraid when troops they didn't yet know well entered the village on foot patrol, rather than in vehicles. (This particular unit had recently moved from a very dangerous region in Iraq and were still getting to know the locals.) This sort of one-on-one diplomacy is critical to the long-term success of the mission here."

And:

"You wouldn't know it by reading the New York Times, but IED attacks are actually down since December. I headed over to the Iraqi side of the base, where I saw the Iraqi troops being trained, with interpreters on site, of course. The men-about 30 of them-were friendly and seemed dedicated. They also risk their lives just by being part of the new Iraqi security forces-so most didn't want their pictures taken. Their American counterparts seem genuinely fond of these men-and not happy that the whole story is not being told by the "major media." More of the battlefield control is being turned over to the Iraqis later in the spring. "When the Iraqis see one of their own on top of a tank, they seem really proud," said one of the military trainers. "We need that to be the norm, as quickly as possible," commented one of the smart young majors riding with us. . . ."

More FISA & NSA

My post just below on the Wall Street Journal's editorial suggestion that Congress should abolish FISA seems to fit with Hugh Hewitt's observation:

"This Washington Post account makes clear that U.S. District Court Judge Colleen Kollar-Kotelly, Chief Judge of the Foreign Intelligence Surveillance Court, is making crucial decisions about the extent of the country's surveillance operations against al Qaeda --on her own.

Judge Kollar-Kotelly may be a fine judge and a wonderful person, but her background simply does not suggest she is competent to make these sorts of decisions --on her own. The Post reports that Kollar-Kotelly (and for eight months, Judge Royce Lambert, Chief Judge of FISC on 9/11 through May of the following year when Kollar-Kotelly took over) has been fashioning rules about the NSA program without appellate review or the input of other FISC judges.

This is an alarming detail, and not because the judge is a Clinton appointee with limited if any national security background. Rather, it is simply too much to ask of one judge to shape the intelligence gathering rules for the nation."

Let's add to his observations the point noted in the WSJ editorial that judges aren't elected but members of Congress are.

So, I've been asking myself why the Senate Judiciary Committee was holding hearings on the NSA flap? Why not the intelligence committees of both houses of Congress? Let's take a look at what the Senate Committee on Intelligence describes as its job:

"Created pursuant to S.Res. 400, 94th Congress: to oversee and make continuing studies of the intelligence activities and programs of the United States Government, and to submit to the Senate appropriate proposals for legislation and report to the Senate concerning such intelligence activities and programs. In carrying out this purpose, the Select Committee on Intelligence shall make every effort to assure that the appropriate departments and agencies of the United States provide informed and timely intelligence necessary for the executive and legislative branches to make sound decisions affecting the security and vital interests of the Nation. It is further the purpose of this resolution to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States."

Isn't this interesting? Sounds to me like this committee's very purpose and reason for being is to pay attention to the President's actions in gaining the intelligence our country needs for national security. I'm guessing at least some of the Senators on this committee have been paying attention.

So, why was the Judiciary Committee holding hearings and not the Senate Committee on Intelligence?

The juxtaposition of a secret court and a judge on a secret court being involved in intelligence decision making, while the relevant Senate committee is not holding a hearing, all the while the media and scribblers are furiously throwing about charges and justifications, seems to me curiouser and curiouser. It is almost as though we don't trust our system of political economy to have elected leaders we can trust in a time of war. The Senators on the Intelligence Committee have the clear responsibility to know about the country's intelligence activities. Shouldn't we be trusting them? What are the actions of this committee suggesting about whether the President has abused the powers of office?

FISA

OpinionJournal:

"As federal judge and former Deputy Attorney General Laurence Silberman explained in his 1978 testimony on FISA, the President is accountable to the voters if he abuses surveillance power. Fear of exposure or political damage are powerful disincentives to going too far. But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy. This is one reason the Founders gave the judiciary no such plenary powers.

Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself. The Administration even decided against warrantless wiretaps on al Qaeda suspects communicating entirely within the U.S., though we'd argue that that too would be both constitutional and prudent.

Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s. Congress has every right to scrutinize the NSA program and cut off funds if it wants to. But it shouldn't take the politically easy route of passing the buck to the judiciary and further limiting the President's ability to defend America. Far from expanding FISA, Congress could best serve the country by abolishing it."

I think this is a suggestion well worth considering. Read the entire piece. The very concept of a secret court gives me pause, and more so, than secret efforts by the President and/or Congress to protect our national security.

Rantings of a Sandmonkey

An Egyptian libertarian blogger has some interesting things to say:

"Freedom For Egyptians reminded me why the cartoons looked so familiar to me: they were actually printed in the Egyptian Newspaper Al Fagr back in October 2005. I repeat, October 2005, during Ramadan, for all the egyptian muslim population to see, and not a single squeak of outrage was present. Al Fagr isn't a small newspaper either: it has respectable circulation in Egypt, since it's helmed by known Journalist Adel Hamoudah. Looking around in my house I found the copy of the newspaper, so I decided to scan it and present to all of you to see."

And, this as well:

"Now while the arab islamic population was going crazy over the outrage created by their government's media over these cartoons, their governments was benifitting from its people's distraction. The Saudi royal Family used it to distract its people from the outrage over the Hajj stampede. The Jordanian government used it to distract its people from their new minimum wage law demanded by their labor unions. The Syrian Government used it to create secterian division in Lebanon and change the focus on the Harriri murder. And, finally, the Egyptian government is using it to distract us while it passes through the new Judiciary reforms and Social Security Bill- which will cut over $300 million dollars in benefits to some of Egypt's poorest families. But, see, the people were not paying attention, because they were too busy defending the prophet by sending out millions of e-mails and SMS-messages, boycotting cheese and Lego and burning Butter and the danish Flag. Let's not even mention the idiots who went the usual route of "It's a jewish conspiracy", spouted the stupid argument about the Holocaust, or went on a diatribe with the old favorite "There is an organized campaign-headed by the west and the jews- to attack and discredit Islam, and we have to defend it". They proved, once again, that the arab world is retarded and deserves no better than its leaders."

Say it ain't so.

Inherent Authority or Inherent Power?

In the Washington Times:

"'During the Clinton administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the president has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment. "

Can this be true, that Deputy Attorney General Gorelick testified the President thought he had the constitutional power to search private homes of U.S. citizens without a warrant?

And, why are we talking about authority instead of power?

"The Foreign Intelligence Surveillance Act of 1978 also allows eavesdropping without a court warrant so long as it is reported to the FISA Court within 72 hours. When President Carter signed it into law, it was "a presidential concession as to who had the authority," Mr. Specter said. "Congress exercised it by passing the law and the president submitted to it."

Congress has enumerated powers, not enumerated authorities. The President has the executive power, not the executive authority. I don't understand the conceptual idea of Congress "giving authority" to the President.

Justice Breyer's Active Liberty

Kathleen Sullivan reviews Justice Breyer's Active Liberty. I have a couple of comments on things she has written. First:

". . . . In promising that the justices he appoints 'will not legislate from the bench and will strictly interpret the Constitution,' Bush has faithfully recited the mantra that conservatives regularly use to signal their belief that the Supreme Court should defer to democratic decision making.

But in fact, conservative justices have frequently invoked the Constitution in recent years to strike down laws passed by representatives of the people, especially statutes enacted by Congress. At last month's Senate Judiciary Committee hearings on the nomination of Samuel A. Alito Jr., Democrats and Republicans agreed on little except the view that the court presided over by Chief Justice William H. Rehnquist had struck down too many of their own statutes."

I respectfully dissent. It strikes me that our Constitution, when written and ratified, is the result of "democratic decision making." Furthermore, the Constitution is "the highest law of the land." Deciding cases before the Supreme Court on the words of the highest law of the land seems to me consistent with respect for democratic decision making.

Second, I don't understand the following:

"Breyer goes farther than Ely, however, by applying his theory to statutory as well as constitutional interpretation. He explains why it is best to interpret statutes in the light of testimony before Congress and legislative history rather than their literal texts: "the interpretative process" should make "an effort to locate, and remain faithful to, the human purposes embodied in a statute.'"

It seems to me that the "human purposes embodied" in the Constitution were the creation of a limited national government while at the same time protecting individual liberty against government. Justice Breyer's opinions, as well his "active liberty" approach, seem to me to be inconsistent with these "human purposes."

Take My Land, I'll Pay You Rent

New London has proposed a Kelo compromise. I posted on this over at Eminent Domain Institute:

"And, there's this:

'But she and another plaintiff, Michael Cristofaro, said they aren't interested in paying rent for homes they owned.'

Oh, so the people who had their property taken by the city don't think this is a compromise either, eh?"

You really have to check this out and understand how government operates.

NSA

Attorney General Gonzales:

"History is clear that signals intelligence is, to use the language of the Supreme Court, 'a fundamental incident of waging war.' President Wilson authorized the military to intercept all telegraph, telephone and cable communications into and out of the U.S. during World War I. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the U.S. These sweeping measures were seen as necessary and lawful during critical moments of past armed conflicts. So, too, are the more focused intercepts of al Qaeda during our current armed conflict, especially given the nature of the enemy we face."

Is there any reason to believe that "history" is not clear on this question?

Sowell Writes on the NSA Flap

Thomas Sowell:

"Terrorists and terrorist governments are giving us almost daily evidence of their fanatical hatred and violent sadism, as the clock ticks away toward their gaining possession of nuclear weapons. They not only hold a harmless young woman hostage in Iraq, they parade her in tears on television, just as they have paraded not only the terrorizing, but even the beheading, of others on television.

Moreover, there is a large and gleeful audience in the Arab world for these gross brutalities, just as there was glee and cheering among the Palestinians when the televised destruction of the World Trade center was broadcast in the Middle East.

Yet what are we preoccupied with or outraged about? Whether the American government should intercept the phone calls of these cutthroats to people in the United States.

That question has been sanitized in the mainstream media by asking whether the government should be engaged in 'domestic wiretapping,' just as the terrorists themselves have been sanitized into 'militants' or 'insurgents.'

The way the question is posed by many in the media and in politics, you would think our intelligence agencies were listening in on you talking on the phone to your aunt Mabel.

Be serious! There are more than a quarter of a billion people in the United States. Intelligence agencies have neither the manpower, the time, the money, nor the interest to listen in on you and your aunt Mabel.

Lawyers may differ on fine legal points about the Constitutional powers of the commander in chief during wartime versus the oversight powers of the courts. But, a Supreme Court Justice once pointed out that the Constitution of the United States is not a suicide pact.

The Constitution was meant for us to live under, not be paralyzed by, in the face of death.

When some honcho in the international terrorist network is captured in Afghanistan or Iraq, and the phone numbers in his computer are found by his American captors, it is only a matter of time before his capture becomes news broadcast around the world.

In the hour or two before that happens, his contacts within the United States may continue to use the phones they have been using. Listening in on their conversations during that brief window of opportunity can provide valuable information on enemies within our midst who are dedicated to our destruction."

This reminds me of a passage in David McCullough's Truman:

"It could not have been a more exciting or important time, Clark Cliffor would say, recalling events of 1947 and '48. 'I think it's one of the proudest moments in American history. What happened during that period was that Harry Truman and the United States saved the free world.'

[. . . .]

Their exhilaration derived in part from the tremenous urgency of the moment. Events moved rapidly. 'There was much to be done and little time to do it.' Truman would remember. Plans had to be conceived and clarified with minimum delay, imagination applied, decisions reached, and always with the realities and imponderables of politics weighed in the balance. The pressure was unrelenting. 'You don't sit down and take time to think through and debate ad nauseam all the points.' George Elsey would say, in response to latter-day critics. 'You don't have time. Later somebody can sit around for days and weeks and figure out how things might have been done differently. This is all very well and very interesting and quite irrelevant." (p. 554)

The debates of the law professors are "all very well and very interesting," and maybe they are relevant. The media and the pundits are surely keeping busy and having fun, and politicians are getting face time before We The People. Yet, we have elected one person to be responsible for using the power of our country to protect us from those who are our self-avowed enemies. None of these others have been elected to carry out that awesome responsibility. I suspect none of these others commands nearly all the knowledge that our President has about our enemies and our dangers, and I suspect none of these others has ever faced the awesome pressures of having responsibility for protecting We the People. Sitting around in committee meetings, standing before cameras, and punching keys on a keyboard are faily leisurely activities that individually (and perhaps even in aggregate) really seem to accomplish very little in the daily efforts of our country to defend ourselves from our enemies.

If the members of Congress are truly concerned about spying on those people the President believes are likely to be our enemies, then why not put up, or shut up? Is it not clear that the President should use the resources of our country to spy on those believed to be our enemies? Does the answer to this question depend on whether our enemies our already on our soil or not?

More NSA

Guy Taylor writes:

"The Constitution drew from each, vesting the power to make laws 'in the Congress,' making the president 'commander in chief' of the military, and leaving it to the courts to resolve disputes between the two."

I think the idea that the courts are to resolve disputes between the other two branches of government is simply wrong. If that were there case, why would we think we have 3 co-equal branches of government? Disputes between Congress and the President over national security are political matters that are to be determined, according to the constitution, by political means. Further, as I've read lately about the Supreme Court opinions regarding war powers vis a vis both Congress and the President, it seems to me the Court has most often taken the position I suggest.

He also writes:

"President Bush appears to have permanently carved his place in the debate by acknowledging that since September 11 he has authorized the National Security Agency to electronically spy on people in the United States communicating with suspected terrorist-linked individuals overseas without warrants from a secret court created by a 1978 federal law to oversee such activities."

I don't believe the choice of words here presents the circumstances accurately. I don't believe the President authorized the NSA to electronically spy on people in the United States. Instead, I think the President authorized the NSA to spy on suspected enemies of the United States. I think these two statements are very different. Perhaps the present NSA spy flap would have much less traction if statements in the press were more accurately presented? Or, have I missed the evidence that the NSA program was intended to spy on Americans?

Tax Fairness

Mort Kondracke:

"To me, the most sensible first step to fiscal sanity would be to reform, but not repeal, the estate tax, which could save as much as $400 billion over 10 years. But Republicans are wedded to the idea of repealing what they call the 'death tax,' even though it applies to only the richest 0.5 percent of taxpayers."

What is the reason here? We should have this tax because it applies to only the richest 0.5%? That doesn't make any sense.

It seems to me we should be very unhappy about any tax base that does not apply to every one.

A Bad Economist & A Good One

Frederic Bastiat :

"In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.

There is only one difference between a bad economist and a good one: the bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen."

Perhaps this criterion could also apply to politicians?