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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, September 03, 2005

Constitutional Thoughts



Hurricane/Flood:(1) Jack Balkin has an interesting discussion on the development of the constitutional understanding of the federal taxing/spending power. (2) Mention has already been made how misuse of the national militia for unnecessary foreign adventures has deprived it resources for the more appropriate domestic emergency with which we now are dealing.

(3) Note how Art. IV requires state requests for national forces to be used to deal with domestic disorder, though Congress can authorize federal use of the militia to uphold federal law.(4) The Commerce Clause, especially given the interstate nature of the emergency, also is relevant here.

Book: War Powers: How The Imperial Presidency Hijacked The Constitution by Peter Irons is a pretty good work, though it tends to speak to the choir. My problem, as is sadly the case in some other works by Irons including his "May It Please The Court" oral arguments series, is that it is filled with a few too many errors that one of his students (who I assume helped edited the thing) could have picked up. This is particularly annoying since a few errors in that series were pointed out and he admitted to making a few mistakes. One would think he would take better care so those of us who did not graduate from Harvard (Ivy league universities are so overrated, lol*) does not have to grit our teeth while reading him.

John Adams could not select John Marshall to the Court in 1803, two years after he left office. The Curtiss-Wright case was not unanimous, even if the dissenting justice only referenced the lower court opinion, not writing a separate dissent. His coverage of the important German saboteur cases during WWII was shoddy and woefully incomplete, not even mentioning the American citizenship of two of the defendants. (Cf. The account in Cato Supreme Court Review: 2003-4, a couple books on the cases, and other coverage)

And, I do not know why he keeps on saying that presidents clearly has some right to "reprisal," when Art. I expressly gives that power to Congress. Some inherent presidential right to attack in order to defend Americans overseas also is accepted, apparently, but would the reverse be true? If unrest in New Orleans endangered say Mexicans, can Mexicans come in with a few warplanes and such to protect their nationals? Please. Louis Fisher's Presidential War Power (written in the mid-90s, but he has a new book out on military trials that looks good) did a better job (including on this point), while having basically the same point of view. Still, Irons provides a historical account for the everyday reader that is well worth reading.

One that would put ordinary citizens on guard. After all, we read how Colin Powell in 2004 (you know, BEFORE the election) admitted the case for WMDs being in Iraq in 2003 was based on shoddy intel. I do not recall this being a compelling point in the election, the people not truly having to face up to who they were electing (since JFK's position left something to be desired). And, now we have even conservatives upset at el presidente's leadership abilities in a time of crisis. Why? You knew what you were getting ... so why you complaining now? The truth a bit too obvious for you?
We the People of the United States, in Order to form a more Perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America.

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* "Experts" should not be given too much credit, which is why juries only consider their judgment in trial, not necessary believing their opinion on the case. They too have axes to grind and blind spots. I note Randy Barnett, another law professor, a libertarian sort that opposes senatorial filibusters -- Presidents have to have their choices vetted by the Senate, but the Senate has a responsibility to vote.

He said this on a panel discussion for Judge Roberts, apparently considering the "vetting" done by the Republicans in the Senate seriously. Apparently, EVERY nomination (sorry if a few stray ones were missed) was A-OK, since even a few stray Republican votes against a nomination is a news event. Sorry, I cannot take that seriously, and if you do Professor Barnett, I cannot take you seriously.