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Constitution in Brief


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Rule of Law Requires Free Expression

Because had Citizens United come down for the alternative, the decision could have been summarized: First, they came for the corporations . . .

The First Amendment protects, in passive voice, the right to free expression.  This is a negative right, one retained by the people rather than traded to the community in exchange for governance/safety.

What if 1A hadn’t been written as a passive, negative protection?  If the Constitution had protected only individuals’ right to expression?  Well — then who counts as an “individual”?  Citizens?  Non-citizens?  Citizens as avatars, or as blogs, newspapers, etc.?

My esteemed — and handsome! — former colleague Reid Smith illustrates the case for broadly-protected speech using the infinitely-flawed Iraqi system as counterexample:

We might have known that come election time in Iraq, it’s rarely the voting that counts.

Controversy surrounding Iraqi Prime Minister Nouri al-Maliki’s attempt to prohibit political rivals from participating in March’s parliamentary election has threatened to splinter Iraq’s fragile democracy. Although the campaign for Iraq’s legislature does not formally begin until next week, 511 would-be candidates, both Shi’a and Sunni, with alleged ties to Saddam Hussein’s Ba’ath party found themselves unexpectedly stuck in political limbo.

The legal face-off pit the prime minister and a powerful Shi’a-led governance commission—one which replaced the original “De-Ba’athification” board established by the Coalition Provisional Authority—against a judicial appeals committee accused of acting under pressure from the United States.

How much pressure is too much?  And when does “campaigning” become “politicking”?

The stakes are high. Oil contacts, the status of U.S. forces, and the political representation of the Iraqi people hang in the balance of the March 7 elections. There have been rumblings that the Accountability and Justice Commission, helmed by several prominent Shi’a politicians, was designed to eliminate rivals and distract voters from the inability of the Maliki government to provide security, basic services and reduce unemployment. The commission’s interests are further blurred by its supervisor, Ahmed Chalabi, erstwhile ally of the Bush administration, who has since been suspected of Persian-politicking with Iran. Regardless, the uproar created by the commission’s judgment to haphazardly blacklist over five hundred aspirant MPs has threatened to drag the country back into the violent sectarian strife.

Last Wednesday, the seven-judge appellate committee that overturned this decision ruled that the banned candidates may participate in the election, although their cases would be revisited, and exhaustively reviewed, after voting. All those found to have legitimate ties to Saddam’s Ba’athist regime, or those found to be in breach of Iraqi election laws, would be permanently barred from participating in parliament. Since that time, of the 511 candidates originally targeted by the Accountability and Justice Commission, many were scratched by their parties, and some have seen their bans lifted. 177 cases remained in the appeals pipeline, but it was revealed Tuesday that only 37 of these petitions were filed correctly leaving the remaining 140 candidates ineligible for participation.

Although al-Maliki initially balked at the court’s decision to reinstate the candidates, and demanded a special session of parliament to uphold the black-listings, a meeting held between the prime minister and the head of the appeals body on Saturday apparently produced a satisfactory compromise. Not surprisingly, this impromptu arrangement may have drastically undercut constitutional law, as the standard appeals process was altered for appearance sake, shortly thereafter.

So it seems rule of law in Iraq still falls to: Say all you want; we’ll decide later whether to punish you for it.  Or, for the Iraqi constitution in peril: First they came for the ex post facto clause . . .

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The Flaccid Fourth Estate

Last year I asked myself repeatedly why we kept talking about Britney Spears’s ladyparts.  I wondered how an ungraceful limo entrance heard round the world could supplant everything more urgent, if not more critical, than Britney’s hoochie-cooch.

The answer, of course, is obvious: We pay for it.  Why would we seek out nebulous concepts buried in spin when Britney’s right there?  And she’s underdressed! And now she’s shaving her head!

I’m fortunate to live in a place where I have instant access to the viewpoint I prefer.  There’s no question we have some response to what’s up in this country.  There’s simply not enough of it to counter the oppressive “act first, think later” attitude that prevails.

Right now we’re looking at a unified Executive-Legislative one-two punch.  Legal scholars have added their collective voice to this collective thinking, calling for the Supreme Court to move further to the left.  Indeed, a few major left-leaning Constitutional scholars have begun to call for a Rooseveltian Court-packing scheme to “prolong [their] majority.”  Even without packing, the Judiciary may well move substantially to the left before Obama’s first term ends.

Traditionally the media provides a sort of “fourth check” to balance the government.  Arguments in the First Congress surrounding the passage of the First Amendment suggest that maintaining an objective media is a huge part of why the Bill of Rights passed at all.  The first of few enumerated rights, critical to our structure of government, is our ability to criticize.

Checks and balances have more to do with sharing powers than distributing them.  But in this past year the fourth branch has utterly failed to keep the government (“Big G”) in check.

Start with the legislature.  We’re seeing some massive bills rammed through the works.  Our unified Congress has brazenly expressed its determination to pass as much legislation as possible before 2010.  If you check Drudge this morning there is a list of pork included in the health care bill that includes actual pork: $1,191,200 for “2 pound frozen ham sliced”; $16,784,272 for — no joke! — “canned pork.”  Not only are these government-expansion measures blatant, encounter little complaint from the media.

In fact, the filibuster-proof legislature has been using the fourth estate to hasten its expansion.  Right before the first (or second, if you count Bush’s 2008 stimulus) bail-out we saw a flurry of fear-mongering propaganda among the major left-leaning news sources to stir up reactionary responses to the recession.  Without that propaganda, popular resistance would likely have hindered the bail-out from passing.  Markets may have found their way back to their feet by now.  But because so much main stream emphatically backs our otherwise-unchecked government, we see deference where there should be skepticism from the press.

Failure to check the Executive proves even more dangerous.  Honduras (Zelaya) coverage [last summer] represented perhaps the most egregious example of the media’s failure to perform its “check” duty as Fourth Branch.  Countless networks continued for months to refer to military action in Honduras as a “coup”!

If anything, that was President Obama’s greatest coup yet.  Honduras merely attempted to maintain its constitutional government and dignity abroad.  But the American president sided with such revolutionaries as Chavez and Castro to quash the rule of law in Honduras with one rhetorical fell swoop.

When former President Bush toed the Rule of Law line the media immediately – and rightly! — pounced to demand adherence.  With Honduras we should have seen a monolithic media declaiming Obama’s actions and demanding that we respect the rule of law.  We don’t want an irreverent media; we just need a press corps that does not behave like the President’s deferential interns, making a Lewinski of the Fourth Estate.

President Obama repeatedly takes advantage of media deference.  Last month he penned a Washington Post op-ed filled with rhetoric and aimed directly at latte-sipping, arugula-eating elites.  Kudos to the President for acknowledging that the bail-out failed.  But a Sunday morning “fireside editorial” is NOT the way to address those most affected by government failure.  Karl Rove mocked the president’s rhetoric in a subsequent Wall Street Journal column.  This was the extent of the fall-out calling for more action than rhetoric.

Rather than spin feeble verbal circles, the Executive branch should release its death grip on industry and permit markets to work.  As long as President Obama continues to apologize even while persevering in using Big G as a reactionary tool we will only see more problems.  An active “fourth branch” media check could demand results and halt further disingenuous appeals to elites who don’t know and don’t care.

Finally, in the least dangerous branch, an overly deferential media failed to demand soon-to-be Justice Sotomayor’s perspective on legal policy.  For the duration of last month’s hearings we all waited with bated breath to hear Sotomayor betray her position on…anything!  She never revealed a single viewpoint, and her adoring fans in the press took it in stride.

Without a media check we will inevitably see the judiciary follow the rest of Big G to spin further and further from responsibility to the political process.  With the rest of the government so united, a weak Judiciary will be a huge detriment to the future of our constitutional republic, and indeed, to the future of our Constitution.

Now is not the time to nod sheepishly and admit that we have not read the bills.  The First Amendment may cover Britney’s ladyparts better than she covers them herself, but this was not why 1A was passed.  The media can keep the government responsible, but deference is not the way.


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McCulloch Signing Statement!

I’m researching the Necessary and Proper clause and came across an article describing Chief Justice Marshall’s reaction to the public outcry in response to his McCulloch decision. He felt so vilified that he published an anonymous letter (signed “A Friend of the Constitution”) defending his decision. CJ Marshall says, in part:

In no single instance does the Court admit the unlimited power of congress to adopt any measure whatever, and thus to pass the limits prescribed by the constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court also expressly says, “should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal … to say that such an act was not the law of the land.

See Essays from the Alexandria Gazette: John Marshall, “A Friend of the Constitution,” 21 Stan. L. Rev. 456. I found this in Randy Barnett’s symposium piece, The Choice Between Madison and FDR, 31 Harv. J.L. & Pub. Pol’y 1005 (2008).

Marshall wrote a signing statement! Marshall claims that his opinion doesn’t mean exactly what everyone knew it would mean in practice!

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