Rand Paul's Filibuster, Due Process, and Democratic Cowardice

I've never been a big Ron or Rand Paul fan. The elder's refusal to take responsibility for his racist fundraising emails in the 1980s is an inexcusable disgrace. Rand has publicly distanced himself from the "L-word," and proudly asserts his conservative bona fides. I am not anti-Pauls, but I'm not about to put a "Paul 2016" sign up in my window either.

But what Rand Paul did yesterday was remarkable and one of the greatest political moments of my life. For thirteen hours, Rand Paul held a basic--though imperfect--civics lesson, citing simple truths and fundamental rights that the Obama administration blithely asserts they can ignore. Only one Democrat, Sen. Ron Wyden, had the courage to quite literally stand up for what is right.

I say "imperfect" because, not only did he get some constitutional doctrine wrong, Paul became too distracted by "drones," the weapon with which the United States carries out much of its targeted killing program. Easily lost in his many hours of talk about drones and Hellfire missiles, Paul was making an extensive and coherent defense of Due Process and the fundamental rights every American has against his government. In the criminal realm, these rights include, but are not exclusive to:

• Right to habeas corpus (the government has to present just cause for imprisoning you)
• Right to counsel
• Right to face your accuser
• Right to trial by jury
• And, in the case of an accusation of treason Article III  § 3 of the Constitution is quite specific:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Two witnesses. Overt acts.  Open court. For all the ambiguity in the Constitution, the requirements placed on the government to pursue charges of treason against a citizen are about as unambiguous as the document gets.

Yet, there isn't one of these rights and protections that isn't violated in its entirety by President Obama's "Kill list."

Since the birth of government thousands of years ago, rulers and despots have been ordering enemies killed for both just and unjust causes. It is the most brutal use of state power and it has been used and abused throughout the history of civilization.

But for almost 800 years, Western legal tradition has forbidden its use against its citizens. The rights listed above aren't some product of a bleeding heart ACLU lawyer, they have been formed by our  understanding of the rights of man since 1215. For reference, Genghis Khan was pillaging China when England decided, "Hey, maybe we should put in some safeguards to protect people from being indiscriminately killed by our leaders."

There is nothing that changed on 9/11 that should upend the wisdom learned over the greater part of a millennium.  The brilliance and beauty of our 224 year old system of government is that, at great cost and over time, it has continued to expand, not restrict, these protections that once were given only to "free men." The ancient right to Due Process was crafted over centuries, ultimately codified in our Constitution, to protect citizens from the unilateral actions of a government entity.

And yet, we have an administration that claims the power of assassination by executive decree, with no geographical boundary, and no reasonable understanding of "imminent threat"--the standard used to self-justify their secret decisionmaking.

When directly questioned by the Senate Judiciary Committee yesterday, whether the government had this power to order the domestic killing of an American citizen away from any cognizable battlefield, Attorney General Eric Holder essentially admitted as much, though he said it was highly unlikely they'd use it. Holder half-assed his answers, obfuscating as much as he could, in order to not say outright that the government can kill you without oversight or due process at its whim, dismissing the question because it was "hypothetical."

Yet, for another hypothetical, Holder didn't back down from specifics. This is the exchange Holder had with Sen. Grassley:

GRASSLEY: Once again, thank you for coming up here. I want to follow up on your response to Senator Cruz. And I think he talked about introducing a bill. Do you believe that Congress has a constitutional authority to pass a law prohibiting the president's ability to use drone aircrafts, to use lethal force against American citizens on U.S. soil? And if not, why not?

HOLDER: Do I think the Congress has the ability to pass such a bill?

GRASSLEY: No, whether the legislation -- well, yes, Congress has the constitutional authority to pass a law prohibiting the president's ability to use drone aircraft, to use lethal force against American citizens on U.S. soil.

HOLDER: I'm not sure that such a bill would be constitutional. I think that might run counter to the Article II powers that the president has. I'd have to look at, obviously, the legislation, but I would have that concern.

GRASSLEY: OK. But your basis is -- the why not, it'd be because of Article II?

HOLDER: I believe so, yes.

The  Attorney General of the United States's first reaction to a hypothetical bill to ban domestic drone strikes is to "have concern" that the President's power may be limited. Yet, the hypothetical nature of a question whether the government could summarily kill a citizen on American soil prevents him from unambiguously supporting 800 years of common law and the explicit text of the Bill of Rights.

I have a hypothetical for the administration:

A train is bombed by terrorists, killing over 100 people. A fingerprint pulled from the reconstructed device comes up with a match in the government's database. The fingerprint belongs to a Muslim American citizen living in Oregon. The United States has tangible evidence that he is responsible for over 100 deaths of innocents. Can the government kill him?

These facts aren't really hypothetical. In the wake of the Madrid train bombing, Oregon attorney Brandon Mayfield was taken into custody and held weeks without charge for a misidentified fingerprint. He was guilty of no crime, but government agents threw him in a cell and denied him his constitutional rights for weeks. Due Process should have protected him, but because he was thought to be a Muslim terrorist, his rights were ignored. Presented with tangible evidence in the wake of a mass casualty attack, in a world in which American terror suspects are routinely targeted abroad, it doesn't take a slippery slope to reach the point where a presidential hit is put on an American citizen in the United States. It just takes one step and a call to clandestine operations.

So when a U.S. Senator took to the floor to bring this bold assertion to the forefront of the public eye, only one person from the party that prides itself on its civil rights bona fides stood up to even question the claim. One.

I do not believe for one moment that most of the Republican senators, or even all of the Republicans who raised questions last night, agrees with Paul. They used his filibuster as a political tool to attack Obama. Under a Republican administration--which not a few of them imagine themselves to be someday leading--many would have no qualms whatsoever with this power. But this was an opportunity for the Democrats to stand up for what they claim to believe in, at no conceivable political cost from their constituents, yet all but one sat on their hands. They said nothing. They'll get no such support against executive overreach from Republicans during a Republican administration, and they know it, yet they just sat idly by as one man spent 13 arduous hours explaining the fundamental importance of Due Process and how assassination by executive decree, with no oversight or recourse, is anathema to a functioning republic.

Their silence was cowardice. They should be ashamed of themselves.

bellum medicamenti delenda est

UPDATE:   Adam Serwer reports that Holder has answered Paul:

"It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Holder wrote. "The answer to that question is no."

Sigh. The drone issue continues to obscure the fact Americans have no legal recourse against a secret executive order to kill them, whether at home or abroad.

Quote of the Day: When Words Have No Meaning

This requires a little background, so please bear with:

A friend sent me a link to this piece in Forbes about the Founders' "socialized medicine." Ezra Klein at the Washington Post picked it up. One of the MoJo journos I follow on twitter, Nick Baumann, linked to it saying: "Amazing."

Similar to what I commented at Forbes, I tweeted back to Baumann that the law in question dealt with enumerated powers, taxing power and the maintenance of a Navy, so that they fell well-within the proper legal understanding of the Necessary and Proper clause.

Baumann responded in three parts. The one that concerns me is the second one, but his other tweets are here and here. His second tweet, said (with edits for blog clarity):

Ultimately the whole constitutional debate misses the point. We're really arguing about what government should be allowed to do.

This way of thinking probably appeals to many people of various political stripes, but to constitutionalists, beyond the rhetorical subtlety that resembles the effect of a Pan Galactic Gargle Blaster, it is akin to saying, "We're not talking about speed limits, we're talking about how fast we can make the car go."

The Constitution is more than a parchment relic that represents the Founding principles of our country: it is the explicit grant and, to my point, the limitation of power given to our federal government. To say that we're talking about the scope of government without recognizing its proper, delineated limits is to miss the point entirely.

Legislating is not a grand philosophical exercise on tabula rasa to decide what idea sounds good right now. Unconstitutional laws usually seem like good ideas at the time -- to the pols who implement them, at any rate. Unchecked, the government regularly acts beyond its proper authority in everything from speech to imprisonment to wiretapping and torture. Just because the party in power has a policy preference doesn't make it legitimate or constitutional.

Given my affinity for team sports, I understand the "look the other way" mentality when your team commits a foul and gets away with it. But when every time Team A stretches the limits of Congress beyond it's constitutional bounds, they directly empower Team B to do the same on their own pet issues--essentially, that's how precedent works. How The winners, of course, are the teams--they get more power so everybody's happy. The losers, however, are the rest of us who get screwed by civil liberties violations or dying in excruciating pain.

I am not exaggerating. Ironically, the government's arguments for the individual mandate of PPACA, the health care bill,  rest primarily on Raich, the Supreme Court case declaring that medical marijuana grown in the home for personal use that is legal under state law is somehow regulable under the Interstate Commerce clause in the Constitution.

In a way, Attorneys General John Ashcroft and Alberto Gonzales--by way of unconstitutionally prohibiting state-sanctioned medical remedy for chronic pain--forcing Angel Raich and others like her to live (or die) (yes, die) in excruciating pain or leaving them unable to eat because of unabating nausea during chemotherapy could lead to the Dems' triumph in the PPACA litigation.

I wonder if Nancy Pelosi is going to send Alberto Gonzales a thank you note?

Faithful adherence to the text of the Constitution is the best protection for individual rights in the United States. Relying upon Supreme Court justices to be "smart enough" to reach a decision that jives with your policy preferences invites government overreach and the suffering of countless Americans. (see Korematsu) Given the sorry state of medical and insurance pricing, I would never say that government has no role in attempting to remedy our health care system. That said, one cannot responsibly discard the limits of the Constitution for subjectively "good"--or in the opinion of a lot of PPACA supporters, "better than nothing"--policy: torture seems like a "good idea" to some people. Constitutional restraints should mean something.

Years ago, three years after resigning from office, disgraced former president Richard Nixon gave an infamous interview to David Frost in which he said "When the president does it, it's not illegal." This caused an uproar--yet his logic is in lock step with those who wish not to concern themselves with the limits of government.

At what point did disregard for the law move from the profane to standard public policy?

bellum medicamenti delenda est

Old and Busted: Situational Constitiutionalism

New hotness: Cafeteria Constitutionalism-- n. the act of selecting the parts of the Constitution that best support your worldview while ignoring those that preclude your policy preferences.

I was encouraged to stake my claim to the phrase. I happen to like it better than "Situational Constitutionalism" so consider the claim staked. but, alas, a quick google search and it seems I'm a few months too late.

I understand that this becomes a pretty weak blogpost, then,  so to make up for it I give you kittehs playing paddy cake:

Stare Decisis: Latin for "Because We Said So"

I was writing another post about "situational constitutionalism" and one of the links I was going to use was Justice Scalia's scathing dissent* from the 1992 abortion case, Planned Parenthood v. Casey. I found myself no longer wanting to write the post because Scalia does such a marvelous job deconstructing the plurality's incoherent stare decisis argument that Casey upholds the constitutionality of Roe while it simultaneously guts everything substantive in the opinion. Re-reading it brought back memories of Con Law back at IU--and of a Scalia I admired so much more than I do now.

That said, I have three things to mention before linking to the opinion:

First, I am personally "pro-choice" and legal abortion is my policy preference, for a number of reasons. There is nothing inconsistent with Scalia's dissent and holding these positions because I don't believe abortion access should be a federal matter, for reasons Scalia explains better than I could.

Second, part of the inspiration for this post still requires mentioning, especially in the context of policy assertions divorced from reality: referring to abortion clinics as "reproductive centers" is enough to make Orwell proud. There is no doubt that Ms. Lithwick is not the first person to have used this insultingly absurd misnomer, but I read it and nearly suffered ocular strain from the eyeroll it induced.

Third, I wish the Scalia who wrote this opinion was present in the McDonald decision. Instead, we got a conservative hiding behind insults to the legal academy to capitulate sell-out to substantive due process; proof in a black robe that the Right, just as easily as the Left, can lack the intellectual honesty to be constitutionally consistent.

Unfortuately, I couldn't find a PDF of the slip opinion that isn't behind a pay wall, so HTML will have to do.


*Technically, it's a concurrence in part and a dissent in part, but the text makes pretty clear that Nino isn't being very agreeable.

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.