The Dumbing Down of the Constitution



Justice Antonin Scalia stated in a recent interview with California Lawyer (via the Huffington Post) that he believes that the 14th Amendment of the Constitution does not prohibit discrimination on the basis of sex. He believes that the civil rights issues presently ruled on by the Supreme Court really should be determined by laws passed by the legislature.

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

It's a convenient time for Scalia to get loose on the 14th Amendment, as the new, super-right-wing, “constitutionalist” Congress floods into Washington with the intent of revising the document our country was founded upon in their own image. In particular, right-wingers have a particular disdain for the landmark amendment, which did away with many racist and guarantees birthright citizenship -- last summer, Senators John Kyl and Lindsay Graham proposed we do away with it altogether, and the passion for repeal is already bleeding into super-conservative states like Arizona, Texas and Utah. In his passive, wishy-washy stance, Scalia is essentially deflecting interpreting the Constitution -- erm, his job -- back to Congress.

But there's legal precedent that says the 14th Amendment does protect women, along with people of color. The Huffington Post called National Women's Law Center founder Marcia Greenberger:

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

Emboldened by the incoming wave of Tea Partiers, clearly Scalia's using this opportunity to publicly open the door for regressive interpretations of the Constitution.

Scalia defers to the legislature regarding equal rights, sex discrimination, abortion, and all civil rights issues. But what he doesn't acknowledge is that after the legislature rules on these issues, where is the Supreme Court in determining the constitutionality of the laws. Is he really saying that there is no need for the Supreme Court to rule on the issue of civil rights. Is this just shocking or just ignorant?

What we Really Need is Freedom from Intolerance

What came first...the chicken or the egg? In this case, it was an article dated 7/19/10 from Catholic Online by Randy Sly, Obama Moves away from 'Freedom of Religion' toward 'Freedom of Worship.' Then Glenn Beck picked up this theme on his radio program from 7/19/10 and went on a rant about President Obama using the term “freedom of worship” instead of “freedom of religion.”

The inference of both Sly and Beck is that President Obama is heading toward removing everyone's right to religious freedom. Both Sly and Beck are using misguided, misinformed and outright lies as a scare tactic for their followers.

Media Matters puts some perspective on this issue in their article, Beck’s “freedom to worship” rant undermined by the Gipper. You betcha, Ronald Reagan also used the term 'freedom of worship.'

On his radio show today, Glenn Beck went off on President Obama for using the term “freedom of worship” instead of “freedom of religion.” The two are not the same thing, Beck insisted -- the constitution of the old Soviet Union also referenced “freedom of worship.” This led to Beck ranting about the separation of church and state and how “freedom of worship” equates to not practicing your religion in public and that it really means “you can speak out against [religion] but you don’t really have a right to speak out for it.”

Just one little problem with Beck’s line of reasoning: Obama is far from the only president to have used the term “freedom of worship.”

Arkansas Democrat-Gazette religion editor Frank Lockwood did the footwork (well, Google work). It’s not just Democratic presidents who have used the term -- he found an instance of Franklin Roosevelt referencing “the freedom of every person to worship God in his own way” – but Republican presidents as well, including, yes, Ronald Reagan:

Speaking at the United Nations on Jan. 30, 1988, he condemned the Evil Empire.

“Religious intolerance, particularly in the Soviet Union, continues to deprive millions of the freedom to worship as they choose.”

And here’s the Gipper, speaking at the Vatican after meeting with Pope John Paul II:

Perhaps it’s not too much to hope that true change will come to all countries that now deny or hinder the freedom to worship God. And perhaps we’ll see that change comes through the reemergence of faith, through the irresistible power of a religious renewal. For despite all the attempts to extinguish it, the people’s faith burns with a passionate heat; once allowed to breathe free, that faith will burn so brightly it will light the world.

And the Great Communicator, again, at the 1988 Republican Convention:

I know I’ve said this before, but I believe that God put this land between the two great oceans to be found by special people from every corner of the world who had that extra love for freedom that prompted them to leave their homeland and come to this land to make it a brilliant light beam of freedom to the world. It’s our gift to have visions, and I want to share that of a young boy who wrote to me shortly after I took office. In his letter he said, “I love America because you can join Cub Scouts if you want to. You have a right to worship as you please. If you have the ability, you can try to be anything you want to be. And I also like America because we have about 200 flavors of ice cream.” Well, truth through the eyes of a child: freedom of association, freedom of worship, freedom of hope and opportunity, and the pursuit of happiness — in this case, choosing among 200 flavors of ice cream — that’s America, everyone with his or her vision of the American promise.

Lockwood also pointed out that Obama has also frequently used the phrase “freedom of religion,” including in his 2009 speech in Cairo.

As State Department spokesman Andy Laine told Christianity Today, “the terms 'freedom of religion' and 'freedom of worship' have often been used interchangeably through U.S. history, and policymakers in this administration will sometimes do likewise."

Unless Beck wants to make the case that Ronald Reagan was some kind of commie -- and also wants to argue that Obama is sending some kind of coded message to his secret Muslim atheist friends -- he shouldn’t pretend that there’s a meaningful distinction between two words that have long been synonymous for pretty much everyone.

The shift in language to which Catholic Online refers to is found in four speeches of President Obama and three speeches from Hillary Clinton. There is an acknowledgment of the reference by Roosevelt. But no reference to Reagan.

Both Catholic Online and Glenn Beck never mentioned three important points of this discussion while they spewed their fear and lies.

The first is the right of "freedom of religion." The second is the right of "freedom of speech." Both of theses rights are granted to the citizens of the United Sates of America through Amendment I of the Constitution.

Amendment 1 - Amendment 1 - Freedom of Religion, Press, Expression Ratified 12/15/1791.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

The third element is the process needed to amend the United States Constitution is no small task.

There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been used.

The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).

The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.

Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority.

The Constitution, then, spells out four paths for an amendment:

• Proposal by convention of states, ratification by state conventions (never used)
• Proposal by convention of states, ratification by state legislatures (never used)
• Proposal by Congress, ratification by state conventions (used once)
• Proposal by Congress, ratification by state legislatures (used all other times)

It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 [1798]):

The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.

The founding fathers, in their wisdom, wrote into the Constitution which was later ratified by the Supreme Court, that the President of the USA can have no input into any phase of the amendment of the Constitution. Unfortunately what the founding fathers could not write into the Constitution was the 'right of tolerance.'

Fringe or Not Fringe, that is the Question

The lexicon of today's politics includes labels such as 'Birthers,' 'Tenthers' & 'Tea Partiers.' These are all off-shoots of the Republican Party but not necessarily affiliated with the G.O.P. and therefore seem to have a life of their own. In case you are unaware of the distinctions between these groups, here is a simple run down.

The Birther Movement

The Birthers are dedicated to the renewal of the constitutional government, starting with insuring that the President and Commander in Chief is a "natural born citizen."

They seek strict adherence to the Constitution of the USA.

The Tenther Movement

This is a movement urging states to exert their rights under the 10th Amendment. The Amendment, part of the Bill of Rights, states: "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."

The 'Tenther' movement comes from what advocates see as the federal government's forcing policies on the states -- most notably on health care reform, economic recovery measures and social issues.

The Tea Bag Movement

According to the official home of the American Tea Party movement, the Tea Party Patriots are a "community committed to standing together, shoulder to shoulder, to protect our country and the Constitution upon which we were founded!"

The name the "Tea Party" is a reference to the Boston Tea Party of 1773 when the colonists felt disenfranchised. Today the Tea Party is an acronym standing for Taxed Enough Already.

The Tea Party protesters want government off their backs and less taxes.

What all three movements have in common is a desire to interpret the constitution according to what they think the founding fathers intended, which means deregulation, less taxation and no social programs. In many ways, each of these groups is really a Tenther at heart.

Ian Millhiser from Center for American Progress wants to know if, "The Right Re-embraces Lunatic Legal Arguments from the Past" are we "Doomed to Repeat History?"

Spend a week listening to the right, and you’ll think the founders were all modern-day Tea Partiers. Senator Tom Coburn (R-OK) thinks the Constitution forbids Congress to spend federal money on programs he personally disapproves of. Justice Clarence Thomas thinks that the minimum wage, child labor laws, and the federal ban on whites-only lunch counters all violate the Constitution. And of course, everyone on the right thinks that health reform is unconstitutional.

It’s enough to make you think they’re just making it up as they go along. It clearly can’t be the case that every single law cherished by progressives just happens to be unconstitutional.

Yet the reality is even worse. When the right’s view of the Constitution was ascendant 75 years ago, basic protections such as a restriction on child labor were declared unconstitutional; laws banning discrimination were unthinkable; and Social Security was widely viewed as next in line for the Supreme Court’s chopping block.

America’s right now wants nothing more than to revive this discredited theory of the Constitution. These conservatives are over-reading the Tenth Amendment, a provision of the Constitution that provides Congress’s power is not unlimited. So-called “tenther” conservatives are determined to use their twisted reinterpretation to shrink national leaders’ power to the point where it can be drowned in a bathtub. They must not be allowed to succeed for three reasons:

• Tentherism is dangerous. Monopolists seized control of entire industries during tentherism’s last period of ascendance. Workers were denied the most basic protections, while management happily invoked the long arm of the law when a labor dispute arose. Worst of all, Congress was powerless against this effort. And the Court swiftly declared congressional action unconstitutional when elected officials took even the most modest steps to protect workers or limit corporate power.
• Tentherism has no basis in constitutional text or history. Nothing in the Constitution supports tenther arguments. And tenther claims are nothing new. Each of them was raised as early as the Washington administration, and each was rejected by George Washington himself.
• Tentherism is authoritarian. Health reform, Social Security, and the Civil Rights Act all exist because the people’s representatives said they should exist. The tenthers express goal is to make the Supreme Court strip these elected representatives of power and impose a conservative agenda upon the nation.

The right’s quizzical lawsuits challenging health reform are just the tip of the tenther iceberg. If these lawsuits succeed, much of America’s most cherished laws could be next against the wall.

Read the complete article HERE.

These 'fringe' groups are becoming anything but fringe. Rep. Michelle Bachmann (R-MN) just recently chaired the first meeting of the House "Tea Party" Caucus. The group’s goal is to “promote Americans’ call for fiscal responsibility, adherence to the Constitution and limited government.”

The issue for many Republicans is how closely aligned do they want to be with the Tea Party, when much their agenda is not considered to be part of the mainstream.

Prominent GOP-ers who have joined the Tea Party Caucus so far:

• GOP Conference Chairman Mike Pence (R-IN)
• NRCC Chairman Pete Sessions (R-TX)
• Secretary of the House Republican Conference Rep. John Carter (R-TX)
• Rep. Pete Hoekstra (R-MI) -- the ranking member on the Select Committee on Intelligence who is also running for governor of Michigan
• Five other Republican members of the Texas congressional delegation: Joe Barton, Michael Burgess, John Culberson, Louie Gohmert, and Lamar Smith, (R-TX).

Also other GOP members include:

• Rep. Jerry Moran (R-KS)
  
• Rep. Todd Tiahrt (R-KS)

Prominent GOP-ers who have declined invitations so far:

• Minority Leader John Boehner (R-OH)
• Minority Whip Eric Cantor (R-VA)

While the followers of these groups believe in their cause, others think that these splinter groups will either doom the country or be the doom of the Republican Party.

Bush's Police State

The foundation was laid for a police state....

Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide "legal" rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called "torture memos" that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? It makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.

The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush's Department of Justice, issued two disclaimer memos -- on October 6, 2008 and January 15, 2009 -- that said the assertions in those seven memos did "not reflect the current views of this Office." Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked authority to the President because the United States was in a "state of armed conflict." Yoo wrote, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn't intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country "where there are substantial grounds for believing that he would be in danger of being subjected to torture." Bybee claimed the Torture Convention didn't apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee's torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI's leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun -- his information was virtually worthless.

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.