Friday, May 21, 2010

Just for Fun Friday

Today is Pac-Man's 30th birthday. In honor of that, here is an interview with the little yellow hero of my youth.


H/T Dara Lind

Wednesday, May 19, 2010

Situational Constitutionalism: Jurisdiction of Federal Judiciary

Predictably--and certainly not without warrant--the Left is now attacking last night's GOP victor for Kentucky's vacated Senate seat, Rand (son of Ron) Paul. One of the sticking points, as explained by TAP's Adam Serwer, is Paul's desire to restrict the federal judiciary from hearing abortion cases:
He also wants to offer legislation "restricting federal courts from hearing cases like Roe v. Wade."

Yeah, that sounds constitutional.
Unfortunately, it very well may be.

Article III, Section 2 of the Constitution clearly states:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (emphasis added)
Whether we like it or not--and I, for one, don't--Congress's authority to limit federal jurisdiction is explicit in the text of the Constitution and thus has the full force of law. Though the "least dangerous branch" of our federal system, the Judiciary is nevertheless limited by a hefty Congressional check on its authority.

That Congress has not often acted to reduce the scope of federal jurisdiction is a testament to the reverence our system typically pays to the Judiciary. But no less important is the political cost that any Congress would be forced to pay if it overstepped its conventional prerogatives, even if they acted within their legal capacity. Between the political pressure and the sort of gentlemen's agreement between Congress and the Court, unpopular SCOTUS decisions tend to be sustained, or contravened only at the margins. This is certainly not the most secure way to maintain the Court's independence--trusting politicians to be responsible--but it seems to be enough to be a large enough counterweight to aggressive overreach when combined with Congressional electoral self-interest.

I engaged Mr. Serwer on this issue before and after my lunch break, and at one point he wrote:
[I]t would make the bill of rights irrelevant if you could strip the court's authority to review cases involving them
This is not actually true. The Court has ruled that where it has original jurisdiction and explicit (enumerated) authority is not within the power of Congress to restrict. Certainly, the Bill of Rights (or any other explicit power or protection in the Constitution) qualifies by its very existence.  Emanations and penumbras? Well...not so much.

The point is, the Constitution means what it says. We can disagree about some of the more ambiguous passages, but we can't just ignore the plain text when the implications give us pause. To do so is the hypocrisy I refer to as "situational constitutionalism."  We can't just toss aside parts we don't agree with because they may lead to policies we don't like--whether they involve right to counsel, habeas corpus, or jury trials for suspected terrorists, or First Amendment expression by third parties in election campaigns. Conversely, we can't just pretend limits don't exist to implement policies we might like, such as federally protected abortion access, eminent domain for revitalization/rezoning projects, or health insurance mandates. All these exceptions are proposed, for the most part, with good intent. But good intent doesn't trump the Constitution any more than bad policy outcomes do. Everybody has a reason why they want to skirt the Constitution--but if we always ignore it for reasons we think important, then the limits placed by the document cease to mean anything once our political adversaries take power. (Or, in the case of libertarians, seemingly when anyone is in power.)

I share Mr. Serwer's disgust with Congressional authority over federal jurisdiction--but that doesn't make it unconstitutional.

Tuesday, May 18, 2010

Mark Souder and His Part-time Lover

What happened to Mark Souder--or, more appropriately, what Mark Souder did to himself--is what Malcolm would probably refer to as "chickens coming home to roost." He is just another politician who has made his living moralizing to others while living his own life in accordance with a separate (lower) standard of personal virtue. I am not personally offended by his affair because I think a man's (or woman's) personal life is his own business. He set himself up for this, and be it Karma or poetic justice, he got what he deserved.

The reason why I'm commenting isn't about his sexual hypocrisy, though. (Notice, for example, I don't blog about outted anti-gay conservatives caught with men. Most of us pretty much expect that any more.) Outside of having been my Congressman in my last years in Fort Wayne, Mark Souder was the #1 drug warrior in Congress. All of his braying nonsense about morality, abstinence and what have you take a backseat to his amoral stance of imposing his anti-drug crusade at the point of a gun:
One of the reasons why then-Speaker Dennis Hastert originally appointed me to the Homeland Security Committee was to pressure Congress and the Executive Branch not to forget about our duty to fight illegal drugs in the wake of the September 11, 2001, terrorist attacks. Although Democrats now control Congress, in my position as the Republican leader of the Homeland Security Subcommittee on Border, Maritime and Global Counterterrorism, I am continuing to insist that we include battling narco-terrorism as a critical part of our homeland security efforts. Like child and spousal abuse, we will never completely eradicate illegal drug use, but we have a moral obligation to fight this battle.
Narco-terror isn't different from any other kind of terror, save the fact that its driven by profit from the prohibition of drugs. The overzealous war on commerce that Souder and his ilk wage upon American citizens, third world farmers, and nearly every type of person in between, helps fund global terrorism while deploying state-sanctioned terror into people's homes. There are alternative solutions, of course, but his high and mighty morality--blind to the immoral outcomes of his preferred policies--pressed him into waging war against his own country.

I don't care that he shtupped a "part-time" staffer. But, for the good of the country, I'm glad he did and was forced out of office by it.