Justice Kagan's Accidentally Correct Opinion: The States Elect The President

As the Supreme Court finishes out the 2019-2020 term, it ruled on two small, barely noticed cases from the 2016 Presidential election. Indeed, the cases were noteworthy more for having received a unanimous vote from the Court than from any contentious debate over finer points of Constitutional law, and from the fact that the two cases were heard separately, as Justice Sotomayor had to recuse herself from one case but not the other.

However seemingly minor the cases appear to be, arising from two lawsuits over a state's authority to bind Presidential electors to a specific voting preference, the ruling reiterates an important aspect of Presidential elections that has all but disappeared from political discourse and debate in this country: A President is elected not by the people but by the States. In issuing their per curiam opinion in Chiafalo, et al, v Washington (591 U.S. ___ (2020), Docket 19-465), the Supreme Court laid down a legal reminder of the Constitutional order of things.

Roberts DACA Ruling: An Act Of SCOTUS Repugnant To The Constitution

The legacy media could scarcely contain its glee when Chief Justice John Roberts elected to ignore the Constitution and the rule of law to block President Donald Trump's efforts to end Barack Obama's unconstitutional Deferred Action for Childhood Arrivals (DACA) program. Here was proof, they claimed, that the laws are not what Donald Trump says they are, but whatever the Supreme Court says they are.

What the legacy media gets wrong is the same thing Chief Justice Roberts gets wrong: the only standard of law is the Constitution. No act of government which goes against the Constitution can ever enjoy force of law. No act of government which contradicts the Constitution can ever be considered part of the law.

All acts of government repugnant to the Constitution are null and void. That includes Presidential orders and Supreme Court rulings.

Lessons From Antifastan: Celebrating The Mayflower Compact

The evolution of the "Capitol Hill Autonomous Zone", which has sprung up more or less spontaneously around the East Precinct building of the Seattle Police Department, is arguably many things.

With their declaration of autonomy, the zone is almost certainly an insurrection against the laws of the United States. Their clear affiliations with the "Antifa" movement (itself a domestic terrorist group) and "Black Lives Matter" (arguably also a domestic terrorist group) further enhances this depiction, leading to the somewhat unkind but not entirely inaccurate depiction of the zone as "Antifastan".

Having moved into an area effectively abandoned by the Seattle Police Department, some also want to compare the zone to the Paris Commune of 1871, and other radical communities throughout history. Without passing judgment on the merits of the zone itself, a consideration of how the zone has evolved during its as-yet brief existence offers an opportunity to reconsider--and renew appreciation for--early America's own experiments in building new societies and creating new government. In particular, events in Antifastan highlight the unique success and wisdom of the Mayflower Compact, perhaps the earliest charter of self-government in North America.

Destroying Society Is No Way To Save Society

In just under three months, the coronavirus SARS-CoV-2, aka COVID-19, aka the CCPVirus, has completely remade the world in which we live.

We have gone from marveling at the seeming unwisdom of the Federal Reserve's rampant money printing and obsessive interventionism to wondering if their interventions will be enough. Where before the talk of China revolved around Hong Kong protests and trade wars, now we are coming to terms with China's shocking crime against humanity in creating and releasing COVID-19.

Is Adam Schiff Guilty Of Perjury?

As the Impeachment Trial of President Trump gets underway, Congressman Adam Schiff, the leader of the House Managers arguing the case for impeachment on behalf of the House Democrats, submitted to the Senate his "Trial Memorandum" laying out his theory of impeachment and the case he will be arguing on its behalf.

The memorandum has just one problem: It's a lie. Many of of Congressman Shiff's allegations are simply and demonstrably not true.

It is to Schiff's benefit that the memorandum appears to not have been filed under penalty of felony, for if it were Schiff would be guilty of perjury, instead of merely lying to the Senate. Yet let there be no misapprehension here: Congressman Adam Schiff has without a doubt lied to the Senate as he has lied to the American people throughout this impeachment inquiry. The only thing standing between Schiff and a perjury charge is the status of the Trial Memorandum as not being sworn and subscribed to.

The Purpose Of Impeaching Donald Trump: Breaking Presidential Power

Nancy Pelosi finally completed the impeachment of the President, signing the articles of impeachment and transmitting them to the Senate. With articles in hand, the Senate officially swore in Chief Justice John Roberts to preside over the impeachment trial, and the senators themselves were sworn in as the impeachment jury--the Senate has now been converted into the Court of Impeachments described by Alexander Hamilton in Federalist 65.

After months of partisan wrangling over hyperpartisan inquiry and investigation by the House, the Senate finally will have its say on the merits and demerits of the case the Democrats have assembled, even as the true purpose of impeachment has already been revealed and acknowledge by those same Democrats: removing a President they do not like, or at least subordinating him to the whimsy of Congress.

Our Post-Federal Government

Federalism

the distribution of power in an organization (such as a government) between a central authority and the constituent units

James Madison, near the conclusion of Federalist 9, offered up this characterization of his vision of what the nascent United States government under the Constitution should be:

The definition of a Confederate Republic seems simply to be, "an assemblage of Societies," or an Association of two or more States into one State. The extent, modifications, and objects of the Fœderal authority, are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the Union, it would still be, in fact and in theory, an Association of States, or a Confederacy. The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the National Sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of Sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.

This was the government the Constitution established for the United States. This was the government that Benjamin Franklin opined was America's posterity "if [you] can keep it." 

Keeping the Republic has always been the great challenge of this country. From the bloody carnage of the Civil War to the various oppositions of individual states to various pieces of national civil rights legislation, Franklin's skepticism about the durability of the Republic has repeatedly been shown to be well founded. The enduring constitutional controversies surrounding the Patriot Act are but the most vivid example of ways in which the national government challenges and arguably undermines the shared sovereignty model of federalist government articulated in the Constitution, with the ongoing debate over the Constitutionality of ObamaCare running a close second.

The Constitution, as well as Constitutional governance, are subject to constant challenge. To date, elections and the courts have proven sufficient to meet the challenge, but the danger these means will eventually prove inadequate to the task has always hovered over all debate over the nature and future of the Republic.

With the spectacle of Adam Schiff and his Clown World Impeachment arrayed before us, it is time to acknowledge these means are failing us. The courts have not proven themselves immune to the contagion of partisan politics, with many jurists abandoning their sworn duty to impartially apply the law without fear or favor. Our elected representatives see fit to act in ways directly hostile to the Constitution, to champion such hostility, or are simply supine in the face of such hostility. Federalism, as promoted and promised by the Constitution, is no longer a distinguishing characteristic of the national government of the United States. Ours is now a "post-Federal" government--and that is not sanctioned by the Constitution.

Even In Clown World, The Law Remains The Law

One of the enduring principles highlighted by the seminal Supreme Court case Marbury v Madison (5 US 137) is the centrality of law in our government and in resolving our disputes:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

When we wish to determine who did what wrong in our society, we answer that question with studious application of the law to the facts. The Marbury decision itself is an extended homage to the unyielding reality of the law. No matter the issue at hand, our understanding of its right or wrong begins and ends with the law.

This is the order of things in American civic society.

Now that the Democrats in the House of Representatives have seen fit to put this country irrevocably on a path towards impeaching President Trump, we are well advised to recall the law what the law is, and remind ourselves of the actual text of the various laws that are brought into play by this extended political melodrama.

The Law Of Impeachment

The thrust of impeachment is this: it is the means by which Congress may forcibly remove people from the Executive branch of the government, in accordance with the strictures of Article 2, Section 4 of the Constitution:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment itself is a two step process, with the first step being the act of impeachment which must take place within the House of Representatives, per Article 1, Section 2, Clause 5 of the Constitution:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Once the House of Representatives impeaches a President, Vice President, or any other "civil Officer" of the United States government, it falls to the Senate to adjudicate that impeachment, and to remove that person from government if two-thirds of Senate members present during the adjudication vote to uphold impeachment and sustain the allegations so made, as established by Article 1, Section 3, Clauses 6 and 7:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

These constitutional clauses are the entirety of the law regarding the particulars of impeachment, such as they are.  There are no other statutes within the US code, and the word "impeach" does not appear within the established rules of procedure for the House of Representatives. When Congress seeks to impeach the President, these are the legal guides for the entirety of the effort. When the White House labels an impeachment inquiry process "unconstitutional", these are the texts that admit or deny that claim.

The most important point to note here is that there is no Constitutionally defined "impeachment process."  There is no text in the Constitution that says how many different votes are needed to actually impeach the President. There is no definition for how Articles of Impeachment are to be drafted. There is merely the requirement that the whole House render an impeachment; in theory, any Congressman could on any given day present a resolution containing Articles of Impeachment and should it pass with a bare majority of the votes, the President would be impeached, and the Senate would be given an impeachment trial to conduct.

This is what the law is on impeachment.

Rights Of The Impeached

Given the brevity of the actual legal text for impeachment, how should we appraise the claims raised by the White House as well as Congressional Republicans that the impeachment inquiry process to date violates due process of law and denies the President the fundamental rights of the accused?

The right to due process arises in the Constitution within the Fifth Amendment (emphasis added):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is hardly an expansive reading of the text to argue that expulsion from high office constitutes a deprivation of liberty, and so it is incumbent upon the Congress to ensure that whatever impeachment process is determined by either the House or the Senate for its role in impeachment hews to accepted norms for due process of law. Neither can there be any doubt that the President of the United States enjoys the right to due process as much as any other citizen.

Inherent in due process is respect for the rights of the accused. What are those rights? For that we look to the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

We must note, however, that there is a catch: Sixth Amendment rights are framed in the context of a criminal proceeding. Impeachment is not a criminal proceeding, nor is it a judicial proceeding of any sort. Rather, impeachment is a political proceeding, a point which is emphasized by Article 1, Section 3, Clause 7, which explicitly holds open the potential for additional criminal proceedings even after a successful impeachment and removal from office. Were impeachment merely another form of criminal process, after impeachment, trial, and conviction, the Fifth Amendment proscription against double jeopardy would apply, and no further sanction would ever be permissible. We cannot, from a plain reading of the Amendment, automatically extend the particulars of the Sixth Amendment to an impeachment proceeding within the House of Representatives.

Does this mean President Trump has no claim of right in an impeachment inquiry? Not hardly. 

As I have argued in regards to Big Tech censorship of online content and the nature of Free Speech, the rights of the accused are a fundamental right, preceding not just the Constitution but the whole of American government and American society. The rights of the accused are not merely a legal right, but a moral imperative. Even without the bindings of the Sixth Amendment, the Fifth Amendment assurance that in all things there will be due process argues strongly in favor of the President retaining the substance of Sixth Amendment rights if not the precise form. President Trump absolutely has an expectation of being able to, at some point during the impeachment exercise, confront any and all witnesses arrayed against him, and challenge the veracity and propriety of any evidences submitted. At some point during the process of impeachment, President Trump absolutely must be allowed to be heard. Indeed, his right to be heard and defend himself and his honor are primary reasons I argued for the Democrats to commence a formal impeachment inquiry following the release of the Special Counsel Robert Mueller's report on his investigation into the Russian Collusion Hoax, reasons that were echoed by none other than Robert Mueller himself:

It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge.

A due process of impeachment, therefore, must afford the impeached some opportunity of defense.  The House of Representatives may enjoy the sole power to impeach, but that power carries the intrinsic obligation to hew to established civic and legal norms. There may be some small debate over when space for the opportunity to defend should be created, but there is no debate over the absolute legal, Constitutional, and moral imperative for that space.

This is what the law is on the rights of the impeached.

Impeachable Offenses

Within the Constitution, the list of impeachable offenses given in Article 2 Section 4, is brief: "...Treason, Bribery, and other high crimes and misdemeanors." 

That is the sum total of the legal text on impeachable offenses.

That brief list immediately begs the question, however, of what constitutes "high crimes and misdemeanors."

As a curious aside, the exploration of the meaning of this term is also an ironic case for Constitutional originalism. "High crimes and misdemeanors" is an 18th century term of art encompassing a panopoly of misdeeds particular to the holders of high public office, and if a proper understanding of the term requires its reading according to 18th century linguistic and political norms, of necessity one must view the whole Constitution with like regard. The use of that term of art establishes that what constitutes an impeachable offense fundamentally amounts to what 20th century political reformers termed "abuse of power." Such abuse would include various derelictions of executive responsibility as well as various breaches of the public trust that do not rise to the level of criminal malfeasance.

The inherently nebulous nature of the term, as well as the intrinsically political nature of impeachment, was acknowledged by Alexander Hamilton in Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

This is supposed by some to lead to President Gerald Ford's cynical (yet at least somewhat accurate) assessment that "an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history...." As Hamilton warned, there is within impeachment the omnipresent danger that the power of one political faction over another will result in partisan concerns overriding the broader national interests in pursuing impeachment. 

Still, the use of the term "high crimes and misdemeanors" does establish that, to be impeached, a President (or other civil officer of the United States) must behave in a fashion which is rejected by a significant majority of the the American people. Following on Hamilton's view on impeachment and the partisan risks entailed, to qualify as an high crime the conduct must be of a nature that rises above internecine partisan bickering. As high crimes are not necessarily statutory offenses, but political offenses that presumably display a degree of disdain and disregard for the national interest and the national polity, the unspoken addendum to Gerald Ford's assessment must be an acknowledgment that the majority of the House which votes impeachment must accept and be prepared to face the wrath of the voters.

This is what the law is on impeachable offenses.

Are We There Yet?

A virtue of the law is that it provides a framework within which conduct may be evaluated and claims regarding that conduct adjudicated. As Marshall noted in Marbury, the role of any court is to apply the law to a particular set of facts, that from those facts a verdict may be reached, and from that verdict, a modicum of justice dispensed. The framework of the law on impeachment provides a framework within which we may interrogate President Trump's actions, statements, and behaviors, and determine if any rise to the level of an impeachable offense.

The current allegation against President Trump revolves around his July 25, 2019 telephone call with Ukrainian President Volodomyr Zelensky, in which President Trump request Ukraine investigate certain matters arising from the 2016 election, as well as matters surrounding former Vice President and current presidential candidate Joe Biden. Laying aside other facts and particulars pertinent to the allegation for the moment, what manner of impeachable offense might be derived from the telephone call and the request?

One view of the call is that it represented an attempt to pressure President Zelensky to provide salacious dirt--"kompromat"--on a political adversary. Following this coercive interpretation, this view fundamentally accuses President Trump of extortion, which could be an ordinary crime under 18 USC 872:

Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

An alternate view is that President Trump sought, non-coercively, salacious kompromat on Joe Biden for use in his Presidential re-election in 2020. This, it is argued, constitutes an illegal campaign contribution by a foreign principle, which is prohibited under 52 USC 30121:

(a)Prohibition It shall be unlawful for— 

(1)a foreign national, directly or indirectly, to make— 

(A)a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; 

(B)a contribution or donation to a committee of a political party; or  

(C)an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or 

(2)a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

One could also argue that seeking such material might constitute the solicitation of a bribe by President Trump, which is prohibited under 18 USC 201.

These are ordinary crimes covered by federal statute--with bribery an explicit impeachable offense per Article 2, Section 4. As a President is charged in his oath of office to see the laws be faithfully executed, the contention that a President who chooses to violate those same laws has abused his office, abused the public trust, and committed an impeachable offense is not at all unreasonable.

The challenge for the Democrats, then is to present facts which establish that one of these offenses has occurred.  Do they have such facts?

As I argued in my last posting, no, they do not.

Whether one argues extortion, illegal campaign finance, or bribery, in every instance one must establish, clearly and unequivocally, that Ukraine opening an investigation into Joe Biden's activities constitutes a "thing of value." A legitimate investigation cannot qualify, else any legitimately predicated investigation of a political candidate arguably becomes a campaign contribution towards that candidate's rivals, which is an absurd position. For the investigation to have any value for Donald Trump in any capacity, it must lack any legitimate predicate.

Alas, for the Democrats, there are multiple factual predicates that support an investigation, as I have already detailed. No amount of Democrat sophistry can evade the factual reality of the manifest conflicts of interest Joe Biden had regarding implementation of US policy towards Ukraine and the dispensing of loan guarantees. Regardless of whether Hunter Biden committed any crime, or did anything wrong in any capacity, his Burisma directorship presents an unavoidable conflict for Joe Biden which he did not seek to mitigate in the slightest, including obtaining a waiver from the Obama administration (assuming such waiver would have been permissible under the circumstances).

With legitimate reasons to investigate Joe Biden, there simply is no logical way to impute a corrupt act by Donald Trump. By every standard of corruption and abuse of power that operates within American law, there is no corrupt act, and no abuse, by Donald Trump.

Unless and until different facts arise to make the case for corruption by Donald Trump, there are no impeachable offenses established within the July 25 phone call. This is a Clown World impeachment, driven, as Hamilton feared, more by the animus of the Democrats and their majority position within the House of Representatives than on any plain reading of the law or the phone transcript.

Yet the Democrats must still conform to the law. At some point they must make their case in public, and to the public. At some point they must allow Donald Trump space to present his defense and rebuttal. Arguably, as their resolution endorsed the principles of transparency, due process, and the rule of law, they should be creating that space even now, although the indications are that Adam Schiff is leveraging the particular language of the resolution to continue his secret depositions, sifting not for evidence of actual malfeasance, but for sound bites which can be leaked to paint a damning picture of Trumpian corruption, regardless of the reality. He certainly seems determined to continue violating House Rules and deny Congressmen access to the records of the hearings thus far, despite Rule XI(e)(2)(A) of the House clearly stating that all such records of standing committees are the property of the whole House:

(2)(A) Except as provided in subdivision (B), all committee records (including hearings, data, charts, and files) shall be kept separate and distinct from the congressional office records of the member serving as its chair. Such records shall be the property of the House, and each Member, Delegate, and the Resident Commissioner shall have access thereto. 

The Democrats must eventually conform to the law, and reveal everything to the public. When they do, they will need to make their case for impeachment, within the framework of law laid out here. Without a piece of information well hidden and not yet revealed to serve as "the smoking gun," when they make their case, it will want for credibility and substance.

Even in Clown World, the law remains the law. 

These Are Not Democrats. These Are Fascists

Be afraid. Be very afraid.

In the third Democratic debate, candidate and former Congressman Robert Francis O' Rourke let the cat out of the bag on gun control: The Democrats intend to confiscate America's guns. This policy mandate comes even as Americans' enthusiasm for gun control is trending down--probably due to government abuses such as the recent demand of Apple for the names of all the people who've downloaded a gun-sighting app.

Yet this is not the most remarkable policy position that has been embraced by the Democratic 202 Presidential hopefuls. As former Vice-President Joe Biden has demonstrated, the basis for Democrats' domestic policy proposals (to the extent they have any) will be race; to a man, the Democratic Party is now the party of racism. They are also proposing to be a party that will think nothing of deciding how stock markets should behave.

At CNN's hours-long climate change "town hall", Senator Kamala Harris declared her willingness to rewrite the Senate's procedures by eliminating the filibuster:

Kamala Harris says if Congress does not pass the $93 trillion Green New Deal that she will take over the Senate as President and eliminate the filibuster to ram the agenda through

The Green New Deal's creator said it was created to implement socialism, not help the environment pic.twitter.com/k0tONTOUok

— Ryan Saavedra (@RealSaavedra) September 4, 2019

This notion has been echoed by Senator Elizabeth Warren:

I want to be as clear as I can: When Democrats next have power, we should be bold. It’s time to get rid of the filibuster. #DemDebate

— Elizabeth Warren (@ewarren) September 13, 2019

Beyond the Presidential candidates, Congress itself has undertaken to not only criticize Supreme Court rulings, but has expressed a desire to arrogate unto itself full legal authority to regulate voting:

Nadler Attacks SCOTUS, State's Rights, and Vote Integrity: 

Voter ID laws, cleaning up voter rolls, and prohibiting felons from voting are "discriminatory" (racist). 

Goal: Federal legislation to override State and Local Voter Integrity Laws. pic.twitter.com/UWbcfzHual

— TrumpSoldier (@DaveNYviii) September 10, 2019

The "boldness" the Democrats seek is more government intervention in the daily lives of Americans, more laws, more regulation, more centralized control over just about everything. They have said this, time and again, in different forums, different contexts, and with regards to different issues.

In response to all their seeming "boldness" and apparent legislative enthusiasm, however, comes the crucial question: Where in the Constitution is either the Congress or the President given authority to act along these lines?

Without a doubt, this question should be at the center of every political debate in this country. As I have observed previously, if we desire good law, we must begin with the Constitution. If we wish to enact good laws, we must take care not to enact laws which contradict the Constitution and violate even one of its strictures. If we hope to design good law, we must ask ourselves the right questions about the law, and the Constitution. 

Is there authority in the Constitution for any of what the Democrats propose to do? With respect to gun control and gun confiscations, the answer is most assuredly "No!". The Second Amendment is quite categorical in its construction, and thus in its meaning:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

For Congress to have authority to regulate or confiscate firearms, the Constitution must have some other overriding clause. Alas for the Democrats, there is no such clause. The closest one gets to such authority is the Commerce Clause from Article 1, Section 8, but even the Supreme Court has acknowledged that the Commerce Clause is itself not without limits (United States v Lopez, 514 US 549 (1995)), one of those limits being restraint found elsewhere within the Constitution, such as the Second Amendment, a point further advanced in District of Columbia v. Heller (554 U.S. 570 (2008)).

Is there authority within the Constitution for the President of the United States to end the Senate filibuster? No, there is not. Each House of Congress sets up its own rules without outside input, and is explicitly empowered by Article 1 Section 5 to do so. The President cannot command the Senate to change its rules, and the filibuster is a Senate rule.

Does Congress have authority to regulate State and local elections? A plain reading of the Constitution does not permit this question to be answered in the affirmative. The main body of the Constitution itself is silent on whom may regulate elections, but the Tenth Amendment is quite clear that rights and powers not articulated within the Constitution belong to the states or to the People.

Note that these are not questions of propriety or even of efficacy, but of authority. One need not question whether the confiscation of a particular category of firearm would have an impact on violent crime, or if the elimination of the Senate filibuster would enable the passage of better legislation to acknowledge the reality that the President lacks the authority to do what the Democratic candidates are promising. One need not debate voter integrity laws to realize that Congress is not the body authorized to address elections, but the legislatures of the several states. In each example described above, the Constitution prohibits the Congress and the President from carrying out the legislative and executive order agendas promised by the Democrats.

Yet the Democrats as a party are unaware of this. They are oblivious to the patent unconstitutionality--which is to say, illegality--of what they promise. They are completely nonplussed that the very act of promoting these unconstitutional proposals flies in the face of the oath every Congressman and every Senator takes upon assuming their elected office, an oath that is mandated by law:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

How can any politician or political party pride itself on the wholesale disregard of sworn duty? How can any politician seeking or holding high office in the United States fail to acknowledge the supremacy of the Constitution?

The only answer that presents itself is that said politician, said political party, cares nothing for the Constitution. The Democrats, as they have done since the days of Woodrow Wilson, view the Constitution not as a guiding light but as an inconvenience, a nuisance that is best ignored whenever possible. We know this because their promises and their deliberations flagrantly and even pridefully ignore the constraints upon government clearly laid out by a plain reading of the Constitution.

The Democrats are campaigning on a platform of dictatorship, of Constitutional abrogation, of the removal of fundamental rights and basic civil liberties. The Democrats are campaigning to end the rule of law in this country, and replace it with the rule of lawyers, of civil servants, of petty bureaucrats, unelected and unaccountable. They have said this directly and repeatedly. They have said this proudly.

The Democrats are not democrats. They are not adherents of democracy They care nothing for the fact that ours is a government by the people. They are dismissive of the Constitution's Preamble, beginning as it does with the emphatic declaration of popular sovereignty, "We The People...."

The Democrats are literal fascists. One need only look at the definition of fascism to see this to be true:

a political philosophy, movement, or regime (such as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition

Substitute "state" or "government" for "nation" in that definition and one gets the perfect summation of every Democratic talking point uttered in the past several years. This is not an exaggeration.

The United States is and has always been a representative democracy. As Alexander Hamilton said so famously, "here, sir, the people govern". "We The People" are the ones who are the final authority in this country. Not Congress, not government, and certainly not the Democratic Party.

Today's Democratic Party is campaigning on an agenda of stripping that all away. They are doing so openly. They are doing so proudly. And their supporters are cheering them on.

Be afraid, America. Be very afraid.

On Gun Control, We Keep Asking The Wrong Question

Among the more predictable political rhythms in this country is the Second Amendment Two-Step: First there is a mass shooting or other horrific gun crime, followed by a proliferation of pontification promoting various bits of gun control legislation, all of which decry gun violence and promise to end such violence if only Americans would see the light and allow "common sense" gun control.

In the wake of two mass shootings within a single day, one in El Paso, Texas, and one Dayton, Ohio, America is dancing the Second Amendment Two-Step with the music cranked up to eleven. Self-styled "conservative" commentators such as Mona Charen have come out advocating banning certain types of guns purely for cosmetic reasons. At the same time, Democrats such as Senator Chuck Schumer have reliably excoriated Republicans for proposing solutions that are not nearly adequate to the moment or the presumptive "need".

Even alt-media personalities such as cerebral conservative Ben Shapiro expressed support for "Red Flag" laws which temporarily revoke a person's right to keep and bear arms:

Red flag laws are a good idea, but they also rely on a measure of public trust and assumption of good faith by your neighbors. Lack of that trust and good faith is being demonstrated daily.

— Ben Shapiro (@benshapiro) August 7, 2019

Not to be outdone, enthusiastic pro-Trump supporter and host of the YourVoice America Internet talk show Bill Mitchell defended the judicial process ensconced in such laws:

So who determines if you are too mentally unstable to own a gun? The same people who determine if you are too mentally unstable to do anything else - mental health officials and judges.

— Bill Mitchell (@mitchellvii) August 8, 2019

One one level, the reflex is understandable: in the wake of tragedy, it is only natural to seek solutions, and it is the reflexive position of every politician to propose a political solution to every problem. Senators and Congressmen will forever respond to crisis by proposing legislation for one very simple reason: that is what we elect them to do.

However, no amount of good intention is sufficient to guarantee the reflex will produce good law. It is far more likely such reflex will produce bad law (case in point: the abysmally un-Constitutional Patriot Act, passed hurriedly in the wake of the 9/11 terrorist attacks). In the aftermath of tragedy, therefore, it behooves us all to take a moment to seriously consider what would constitute "good" law.

In the aftermath of tragedy is when we especially should look to the Constitution, look to the Bill of Rights contained therein as its first ten amendments, and consider seriously what government is and is not empowered to do. If we desire good law, we must begin with the Constitution. If we wish to enact good laws, we must take care not to enact laws which contradict the Constitution and violate even one of its strictures. If we hope to design good law, we must ask ourselves the right questions about the law, and the Constitution.

When discussing the law, there can be no doubt that the Constitution is the supreme Law of the United States, for that is explicitly proclaimed in Article 6. The direct consequence of this is, as Chief Justice John Marshall observed so saliently in Marbury v Madison (5 US 137 (1803)), "...an act of the Legislature repugnant to the Constitution is void." The Congress is not merely prohibited from passing a law which contradicts the Constitution, it is legally impossible for it to do so--any such contradiction immediately nullifies such a law and renders it void.

Thus, good law necessarily is law which is in keeping with the powers and duties assigned to government, and which does not reach beyond those powers and duties. Marshall's insight in Marbury is, in this regard, merely a restatement of the language of the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

If the Constitution does not empower the United States government to do a thing, the government may not arrogate to itself the power to do that thing.

Thus, when we ask "What constitutes 'common-sense' legislation on guns?" we are asking the wrong question. That is merely a philosophical debating point, and has little actual relevance to the debate at hand, which is effecting legislation on guns.

The question we need to ask is "What legislation is Congress authorized to pass on guns?" This is directly relevant, directly applicable. There is little point to waxing rhetorical about "common-sense" legislation if Congress lacks the authority to enact such legislation. There is no good purpose served by dwelling on measures the Constitution does not permit Congress to pass.

Are "Red Flag" laws Constitutional? Certainly Democrats think so, and so do a great many Republicans. Senator Marco Rubio expressed support for such laws, echoing support offered up by President Trump for the measures:

Our “Red Flag” proposal is the best path forward.

Unlike some of the other ideas out there:

- It can pass

- ⁦@POTUS⁩ would sign it; &

- It could actually stop the next attack #Sayfie #FlaPol https://t.co/FGCEISSHgX

— Marco Rubio (@marcorubio) August 9, 2019

Does bipartisan support amount to Constitutionality? Hardly. The number of laws invalidated by the Supreme Court since the Marbury decision attest to that.

Are "Red Flag" laws Constitutional? Consider the basic structure of these laws. As described by the legacy news media, the prototypical Red Flag law, also called an "Extreme Risk Protection Order" (ERPO) works as follows:

"Red flag" laws allow courts to issue orders to temporarily confiscate the firearms of individuals deemed to be a risk to others or themselves. 

Depending on the state, ERPO laws allow family members and law enforcement to ask a state court judge to issue an order that confiscates the guns of an individual who they believe poses a threat to their safety. ERPO petitioners must present evidence to the court on why the individual poses a threat to others, as well as to himself or herself.

What is the Constitutional foundation for the ERPO? Do they comport with the stricture of the Second Amendment, which quite explicitly states that the right to keep and bear arms "shall not be infringed"? 

I do not see how they can.

One of the more comprehensive legal explorations of the Second Amendment is the Supreme Court case District of Columbia v. Heller (554 U.S. 570 (2008)). Restating the entirety of Justice Scalia's reasoning in that opinion would be too lengthy here, and I encourage everyone to read the decision for themselves, but among the crucial conclusions reached in that decision was that the Second Amendment protected an individual right to own firearms, which right was not tied to direct participation in a militia. Additionally, Justice Scalia demonstrated that the right expressed in the Second Amendment was indeed a fundamental right--that is, not a right granted by the Second Amendment, but rather a right protected by the amendment from government intrusion.

The supreme law of the United States is that the right of the people to keep and bear arms shall not be infringed--that is the plain text of the Second Amendment and that is the plain conclusion of Justice Scalia in Heller.

Can the right to keep and bear arms be temporarily revoked or restricted without infringing upon it? Whether deliberately or incidentally, the position of supporters of Red Flag laws is that such a revocation is not an infringement. Arguably, Heller agrees with this logic, as Justice Scalia conceded that rights protected by the Constitution were not unlimited.

But is Heller correct? With respect to Justice Scalia, I believe he erred on this point. The flaw is found within the text of his opinion--in substantiating his assertion that the Second Amendment right is not unlimited, he references the British legal scholar Blackstone, as well as other notable legal commentators; he references also numerous court cases from the 19th and 20th centuries. What he does not reference is the Constitution itself. He does not point to the language of the Second Amendment, nor to any other portion of the Constitution.

This is, in my view, a fatal flaw in Scalia's logic. Even if one were to concede, in the abstract, that the Second Amendment right to keep and bear arms is not an unlimited right, that under various circumstances a person does not enjoy that right, for a government restriction to stand the government must have the authority to make that restriction. Even if one concedes that, in the abstract, the right to keep and bear arms may be limited, where in the Constitution is the government granted the authority to impose that limitation? Scalia does not answer that question in Heller, nor was that question addressed in any case referenced by Heller.

Consider the definition of the verb "infringe":

to encroach upon in a way that violates law or the rights of another

Applying this definition, the Second Amendment debars the government from regulating or legislating in any way that violates the fundamental right to keep and bear arms. Where in the Constitution is there an exception granted? Certainly not an explicit exception. One could argue, presumably, that certain powers of Congress amount to such an exception, but the more logical leaps one must make the less persuasive such an argument becomes.

The Constitution provides no explicit mechanism for restricting or revoking fundamental rights. Thus, even if we are to accept the premise that the Second Amendment right to keep and bear arms may be limited, there is no basis in the Constitution for presuming Congress has the authority to impose such limitation.

We should pause here to remember the full scope of Marshall's Marbury ruling. The crux of that case was whether or not a writ of mandamus should be issued forcing the federal government to deliver a particular commission to William Marbury. Marshall concluded that William Marbury did suffer a violation of his rights and that the laws of the United States did afford him a remedy, but the laws of the United States did not empower the Supreme Court to provide the remedy Marbury sought. Even though Marbury's claim of injury was "reasonable" and his prayer for relief was "just", the nature of Constitutional authority was such that it did not empower the government--and in particular the Supreme Court--to provide the relief sought.  It was in articulating this limitation of governmental and judicial authority that Marshall penned his immortal insight about a law repugnant to the Constitution being void.

If there is not clear Constitutional authority for Red Flag laws to temporarily revoke a person's Second Amendment rights, it is not relevant how well-intentioned, how reasonable, nor even how effective such a laws may be. If there is no authority to enact such laws, such laws may not be enacted.

If there is Constitutional authority for Red Flag laws, if there is a clause in the Constitution which empowers the government to temporarily revoke fundamental rights, it is anything but clear. A plain reading of the Constitution provides no such authority.

When tragedy strikes, it is only natural to ask what can be done to prevent such calamity in the future. When people commit horrific acts of violence, it is only natural to inquire what laws might empower either the people or the police to prevent such acts. In the wake of the twin mass shootings in El Paso and Dayton, it is eminently reasonable to consider what laws might better equip communities to head off such atrocities.

But it is neither reasonable, nor effective, nor Constitutional to seek laws which exceed the limits laid out in the Constitution. No government of the United States is chartered to go beyond the limits of authority laid out in the Constitution, no matter how well meaning the excess. Good law does not arise merely from good intentions. Good law can only arise from good legal reasoning, and good legal reasoning begins with understanding what the Constitution allows, and what it does not allow. Good legal reasoning, and thus good law, entails asking the right questions.

The debate about Red Flag laws proceeds from the wrong questions. The debate about Red Flag laws centers on the reasonableness of the laws, and the efficacy of the laws, with merely a nod to their Constitutionality, and with no thought at all to the capacity of the Congress to enact Red Flag laws.

Red Flag laws are thus bad law. They require government to exceed its Constitutional authority. Such laws are automatically repugnant to the Constitution and must be immediately considered void.

Speech Or Silence: War Has Been Declared.

If there was any doubt that free speech is under assault in this country, those doubts are fully and permanently laid to rest. Free speech--the underpinning of all free societies--has been declared the root of all evil in the eyes of some.

We have Texas Representative Joaquin Castro warning supporters of President Trump to "think twice" about donating to the President's re-election campaign.

We have CNN contributor Reza Aslan tweeting out for the literal genocide of all Trump supporters. This is not an exaggeration:

After today there is no longer any room for nuance. The President is a white nationalist terror leader. His supporters - ALL OF THEM - are by definition white nationalist terror supporters. The MAGA hat is a KKK hood. And this evil, racist scourge must be eradicated from society.

— Reza Aslan (@rezaaslan) August 4, 2019

Reza Aslan got this much right -- there is no room for nuance. Free speech is a moral imperative. Far more than mere words in the First Amendment to the Constitution, the right of free speech, the principle of free speech, is at the very essence of what it means to have a free society. We cannot be free in our thoughts, we cannot be free in our daily lives, if we are not free first of all to speak our minds, to express our own opinions, to champion those causes we deem good and noble and just. Without the freedom of speech, we are not free, period.

Equally imperative is the freedom to be heard. As we cherish our ideas, we naturally seek to share and promote these ideas. I write this blog and comment on social media under the name of this blog precisely because I want to articulate and advocate for those ideas that I hold and which I cherish. We cannot share our ideas if we are blocked from so doing. We cannot promote causes we deem to be good and noble and just if we are silenced. For us to enjoy the freedom of speech, there must be a concurrent freedom to be heard--ultimately, they are two sides of the same coin.

When Reza Aslan calls for President Trump's supporters to be "eradicated", when he indulges in the language of genocide, he is seeking to silence all 63 million-plus people who voted for Donald Trump in 2016, and who will vote for him again in 2020. By seeking their permanent silence--arguably their literal deaths--Reza Aslan is engaged in a most immoral bit of speech.

When Joaquin Castro warns President Trump's supporters to "think twice" about supporting Trump, he is similarly seeking to silence those people, and is similarly engaged in a most immoral bit of speech.

There is no room for nuance in this: Reza Aslan's tweet was evil. Joaquin's doxing of Trump supporters was evil. Apologetics and rationalizations issued in defense of these statements and actions are evil. They are nothing but evil. There is no defense to be made, no justification to be offered, that makes these statements anything but evil.

Reza Aslan and Joaquin Castro have declared war on free speech. Not only have they not been called to account by the legacy media, they have been justified by the legacy media; "Morning Joe" co-host Mika Brzezinski defended Castro's doxing of Trump supporters by claiming the information was already being circulated. Twitter, the Big Tech social media giant always at the epicenter of these controversies, refused to do anything about either Aslan or Castro, claiming their execrable tweets did not violate Twitter's terms of service. 

The legacy media, Big Tech social media, and the Democratic Party as a whole, have aligned themselves with these attacks on free speech. By their silence and by their words, they approve of and support this war to silence dissenting voices. By their silence and by their words, they are in favor of this war to silence you, to silence me, to silence all of us.

There is no room for nuance in this: There is no more room for either debate or disagreement on this topic. There is no middle ground where the nexus of our disagreements can coalesce into either social practice or government policy. That middle ground--the holy ground for all rationally-minded individuals--has been taken away. You are given one of two choices--you may meekly accept the diktats of liberals such as Reza Aslan, and Democrats such as Joaquin Castro, or you may be eradicated. 

This is the binary choice Aslan and Castro present to you. This is the binary choice the legacy media, Big Tech social media, and the Democrats present to you. They will hear no reasons, they will engage in no debates, they will brook no dissent and most assuredly no opposition. They will, if they can, destroy you. They will, if they can, "eradicate" you.

There will be no compromise. There will be no toleration. There will be no accommodation. You will agree or you will be eradicated. You will submit or you will be eradicated. You will obey or you will be eradicated.

There is no room for nuance in this. There will be no compromise in this. Nor, I fear, will there be any peace because of this. Liberals such as Reza Aslan and Democrats such as Joaquin Castro have declared themselves an existential threat to all who think differently from them. They are the mortal enemies of all who deviate from their orthodoxies by so much as a syllable. Being committed to the destruction of their opponents, they leave those opponents little choice but to destroy them. The dangerous flaw in all rhetoric of "us" vs "them" is that there is no assurance the "us" will prevail over the "them"; Messrs Aslan and Castro may speak with impunity today, but as their adversaries number in the tens of millions, once battle has been joined they may not find the fighting as facile as the tweeting.

Indeed, they ultimately cannot prevail, for the moral imperative is free speech, not oppression. Human beings are called to liberty, not condemned to slavery. We are meant to live in free societies, not relegated to tyranny and servitude. The moral imperative is free speech, and, as history shows, it is an imperative that will not be denied. From the Scots' Declaration of Arbroath to the Declaration of Independence, to the United Nations' Universal Declaration of Human Rights, the impetus of human civilization has always been towards freedom. However fitfully we may move, invariably we move towards liberty. 

Democrats demand your silence or demand your death. Rather than engage in speech with others, they compel this immoral choice.

The moral choice is quite clear. When Democrats demand your silence or demand your death, the only moral choice--the only sane choice--is to be neither silent nor dead. 

Speak out. Speak loudly. Speak proudly. Do not be silent. Ever.