Short: Legal thinking of Chief Justice Roberts

This article, though moderately long, is definitely worth reading. It focuses on Roberts' dissent to the same-sex marriage decision. But it also illuminates certain constitutional arguments in a way that makes them accessible to those people (like me) who glaze over from most discussions of 'due process rights' and other legal terms. If you find the term 'activists judges' poorly defined, you'll have a better idea of what it could actually mean in the context of legal thought.

The article also talks about assumed 'fundamental rights' like the right to marry. It ends with a chilling warning about a constitutional philosophy that would send us back to the 1800s and void many laws and regulations, including child labor laws. It's not at all likely to happen, but it's good for a tantalizing what-if scenario to get your blood moving. Sort of like a roller-coaster for the old, decrepit, and intellectual. That describes me and probably everyone on the Supreme Court. Sigh.

You assumed it was a right, but you're not a justice.

Image: flickr.com

More character assassination from the GOP

We have a new talking point that is being widely adopted by the GOP. They are saying, in light of Obama declaring a few new programs created by executive order, that his is an "increasingly lawless presidency."
This talking point will work about as well as all the others, which means the conservatives can masturbate to it, but they will convince no one new. [Readers, I haven't suddenly gotten more lewd, it's just that I didn't censor myself this time.]

I'm surprised that's there's room for this president to become more lawless, considering that some opponents said back in 2009 that he was going to create his own private army.

Meanwhile, the rest of us sit back and yawn. Frankly, I don't know if Obama has acted more frequently beyond the scope of his powers or not. I do know that Congress has been more recalcitrant that ever in voting on his nominations, so I can't get too anxious about a few possibly illegal recess appointments as a huge affront to the Constitution and limits on executive power. After all, it's not like a few top level bureaucrats are equivalent to commissioning an actual private army.

The clearest overstepping of his powers occurred when Obama used military forces to aid the Libyan rebels. Congress gave no authorization at all--not because they were dead-set against the idea but because they were in a particular pissy mood and wouldn't vote for anything Obama wanted.  So rather than see the rebels languish, Obama ordered the military support in contravention of the War Powers Act. Congress may have been bratty enough to deny him authorization, but they weren't stupid enough to bring him up for impeachment when they were the ones who were acting like children.

If Congress, or particularly the House, won't start impeachment hearings against Obama over large scale use of military forces without authorization, then they probably won't do it over his new savings plan--that incredible bit of lawlessness.

But why do the conservatives start these new charges at regular intervals? Is it like the fashion industry where creating new styles drives sales which keeps the industry afloat? Are they truly oblivious to the effect on the rest of the country who are sick of this hype? Those are questions I love to force some conservatives to answer, preferably at gunpoint.

On second thought, this meme may shrivel within the week. The folks at HotAir care much more that Paul Ryan is trying to sneak in immigration reform than about yet more powers Obama is abusing. You just can't trust anyone.

Image: newscorpse.com

Security or freedom from surveillance

The exposure of NSA programs (the extent of which is not known) has chased the picayune scandals from most news pages. I don't know if blowhards on the right rue this or not, but I'm happy. Finally, a scandal that isn't primarily about scoring points, but has a very serious question at its core.

The big question, as I see it, is whether we in the US should allow wholesale collection of data by the US government. There are many issues to consider. Is the practice unconstitutional under the fourth amendment? (Probably, but open to interpretation. Here's a reminder of the fourth amendment.)

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Does the practice give the government the machinery to be totalitarian if it chooses to go that direction? (I'd bet money on that.) Does the practice help the government foil terrorist plots? (The director of the NSA says yes, about 50 of them.)

Oh drat--good arguments on both sides. How the hell can I decide whether constitutional rights protecting against warrantless searches are more important than stopping 9/11-like events?

You know, I really don't want more events like 9/11. I want potential terrorists to know that there's a high likelihood they'll be discovered if they try to plot something. If the government collects mountains of data to do that, it's a bit scary. But guess what? My grocery store chain already collects data on me (because I want those discounts, dammit!!!) and so does Google, which keeps offering me stuff I've already bought. The government isn't doing squat with my data that I can tell, probably because I don't trip any alarms with too many visits to jihadi sites coupled with airline tickets to Pakistan.

I am worried that I'm choosing comfort over principle. But maybe I'm choosing survival for thousands of my countrymen, which isn't the same as comfort. Maybe I'm letting my government fulfill its mission to protect  the security of the country, another highly important constitutional duty. 

Frankly, I suspect I can't reason my way through this issue. I might just be gathering data and arguments that support the conclusion I already have. That's a problem many people will have with this issue. 

NSA... No, NASA

Image: blogs.loc.gov

Extras. Overview of massive data collection.

My failed thought experiment: Massive data collection is like watching a school of fish. You don't really see the individuals and you don't know anything about an individual. However, you can pinpoint the one that breaks the pattern. But the analogy breaks down when it comes to telephone usage patterns and internet usage patterns because there must be millions of different patterns.So the government can't be looking for everything that deviates from "the pattern" because there are so many deviations. Probably, they filter for specific behaviors. It's only when there is suspicious behavior that the government wants to determine the individual involved. That might pass a fourth amendment test--maybe.

So the government doesn't have a dossier on each person, or even close to that. But do they still have too much information? Yes, if you don't want the government to have the ability to track you. But it's necessary if you want the government to have the ability to track potential terrorists. Not an easy choice.

Open thread: Let's have a Constitutional convention

If any topic deserves its own thread, it's this one. Should we have a constitutional convention, or not?

Of our regular commenters, @truth and Anastasios are for it due to a range of issues including the current dysfunction/gridlock in government and the many unsettled questions that have built up. I'm highly opposed because I fear the unintended consequences of changing a form of government that has evolved over time and served us well.

Here's a review of most of the comments so far, starting with the comment that raised the issue.

Truth > Spin
"I now think we need to address structural issues before we can effectively deal with policy matters in a manner befitting their seriousness. The system has too many points of leverage that are captured by fragmented interests and they have every incentive to maintain the status quo. It used to be that gridlock eventually gave way because the benefit of action outweighed inaction. Today, it is more the case that the benefit of inaction is greater.

I don't think replacing the current crop of people will do the trick. The problems are too endemic and part of how we nominate and then elect Members of Congress.*

As such, I think we need to have a serious national debate over some changes the Constitution and think it is time that a convention to do so be convened.

The other thing I'll add to what you wrote is that not only does someone willing to work with the other side risk being betrayed by the other side later, but they also risk being attacked by purists from within their own party for the heresy of such efforts. I recognize that this has more recently been true within the GOP, but the same thing occurs on both sides.

* For the most part, this criticism is aimed at the House, although the Senate could use a good tune up, too."

ModeratePoli
"Hold it right there!!! I learned something very long along--that a constitutional convention is VERY risky, and I don't want to be messing with those risks right now.

I am very risk averse, particularly downside risks. I don't know what what we have to gain with constitutional changes, but we have a lot to lose, namely checks and balances. There is no way I'd call for a convention without some blueprints available and a strong belief that it will be better. The change that I'll be convinced without seeing those blueprints--zero."

Anastasios
"...I agree with Truth that the Madisonian system is dysfunctional and ultimately unworkable, and we would be far better off with the much more intelligent Parliamentary systems one sees in Europe and Canada."

Moderatepoli
"I don't want to monkey with the Constitution and add in things that were never there. That would be horrible, and we know who does that..."  [a joke]

Truth > Spin
"So are you a Strict Constructionist then in interpretation? Or do you want the document to live only via the readings of Senate confirmed wise men (and Latinas)? ...Don't you think we could all benefit from deciding for once and for all (until next time) whether the Constitution protects the right for private, individual citizens to own firearms and to what degree, if any, that can be curtailed?

Or how about whether indefinite detention of suspected terrorists or evil doers is allowable?

Or whether a fetus can be terminated, and under what conditions?

Don't you think we could all use some black and white on those and other matters? ...

I understand the risks, but my view is that the risk of continuing as we are is greater. I'd accept some bad outcomes from my perspective in order to gain some certainty and the chance to gain positive outcomes. I think too that the process of a convention itself could be a boon to civic engagement and thought."