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Post by philunderwood on Mar 29, 2012 7:01:46 GMT -5
Can the Government Force You To Eat Broccoli? By Judge Andrew P. Napolitano www.JewishWorldReview.com | This week, the Supreme Court measured Obamacare to see whether it fits within the confines of the Constitution. The big picture is whether the Constitution limits the behavior of the federal government to the plain meaning and historical context of the Constitution, or whether clever lawyers and politicians can interpret language in the Constitution so as to justify whatever Congress wishes to do. Does the Constitution mean what it says? Does it limit the federal government to the powers it has delegated to Congress? Or is it a blank check for Congress to do whatever it can get away with? One of those delegated powers is the power to regulate interstate commerce. The language in the Commerce Clause authorizes Congress "to regulate" commerce among the states. When James Madison wrote that phrase, he and the other Framers were animated by the startling lack of interstate commerce among the states under the Articles of Confederation. This was the period after the Revolution and before the Constitution when the merchants and bankers who financed the Revolution also controlled the state legislatures. They were both creditors, because they had lent money to the state governments to finance the war, and debtors, because they now controlled the machinery of state government that owed them money. What did they do? They were the original corporatists and crony capitalists. They formed cartels to diminish in-state competition, and they imposed tariffs to discourage out-of-state competition. Thus, in order to turn 13 mini-economies into one large economy, and to protect the freedom to trade, Madison used the word "regulate," which to him and his colleagues meant "to keep regular." So, the Constitution delegated to Congress the constitutional power to keep interstate commerce regular by prohibiting state tariffs, and it did so. But Congress was intoxicated with its new powers, so it began to keep commerce regular by regulating the fares charged by ferries going from Hoboken, N.J., to New York City — and the Supreme Court said yes. From there Congress regulated the wages of workers who produced goods that were put onto those ferries — and the Supreme Court said yes. Then Congress regulated the wages, working conditions and methods of manufacture of facilities whose goods never moved in interstate commerce, so long as the economic activity generated by the production of those goods had a measurable effect on interstate commerce — and the Supreme Court said yes. This jurisprudence has resulted in the courts approving the congressional regulation of the thickness of leather in shoes, the water pressure in home showers, the amount of sugar in ketchup, ad infinitum. Wherever you go in the United States, it is impossible to avoid confronting federal regulation of human behavior unmentioned in the Constitution, but justified by Congress under the Commerce Clause. It will be necessary for the court to put a backstop on this absurd progression of congressional power in order to invalidate Obamacare's individual mandate. The other line of Commerce Clause jurisprudence that the court will confront started with a farmer growing wheat exclusively for the consumption of his family during the Great Depression, and the feds ordering him to grow less wheat. He resisted that order, and his resistance led to an infamous Supreme Court opinion that upheld the feds' order. That 1942 case stands for the propositions that even infinitesimal economic behavior, even behavior that is not numerically measurable, even behavior that is not of a commercial nature, even behavior that does not move products across interstate lines can be regulated by Congress if, when all the similar behavior in the land is taken in the aggregate, it could have an effect on interstate commerce. This aggregation theory is the most anti-historical, hysterical, disingenuous, convoluted ruling in the court's history. But it is still the law today, and it will be necessary for the court to distinguish or to overrule this case, too, in order to invalidate the individual mandate. Justice Antonin Scalia reminded his colleagues during oral arguments this week that the Constitution is the supreme law of the land and it means today what it meant when it was written and ratified. If Congress can compel you to buy health insurance because that's good for you and for the country's economic health, he asked, can it force you to eat broccoli? And if it can, what is the value of having a Constitution that was written to limit the government's powers?
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Post by philunderwood on Apr 12, 2012 9:43:46 GMT -5
What If the Government Rejects the Constitution? By Judge Andrew P. Napolitano www.JewishWorldReview.com | What if the government never took the Constitution seriously? What if the same generation — in some cases the same human beings — that wrote in the First Amendment, "Congress shall make no law ... abridging the freedom of speech," also enacted the Alien and Sedition Acts, which made it a crime to criticize the government? What if the feds don't regard the Constitution as the Supreme Law of the Land? What if the government regards the Constitution as merely a guideline to be referred to from time to time, or a myth to be foisted upon the voters, but not as a historic delegation of power that lawfully limits the federal government? What if Congress knows that most of what it regulates puts it outside the confines of the Constitution, but it does whatever it can get away with? What if the feds don't think that the Constitution was written to keep them off the people's backs? What if there's no substantial difference between the two major political parties? What if the same political mentality that gave us the Patriot Act, with its federal agent-written search warrants that permit unconstitutional spying on us, also gave us Obamacare, with its mandate to buy health insurance, even if we don't want or need it? What if both political parties love power more than freedom? What if both parties have used the Commerce Clause in the Constitution to stretch the power of the federal government far beyond its constitutionally ordained boundaries and well beyond the plain meaning of words? What if both parties love war because the public is more docile during war and permits higher taxes and more federal theft of freedom from individuals and power from the states? What if none of these recent wars has made us freer or safer, but just poorer? What if Congress bribed the states with cash in return for their enacting legislation that Congress likes, but cannot lawfully enact? What if Congress went to all states in the union and offered them cash to repave their interstate highways, if the states only lowered their speed limits? What if the states took that deal? What if the Supreme Court approved this bribery and then Congress did it again and again? What if this bribery were a way for Congress to get around the few constitutional limitations that Congress acknowledges? What if Congress believes that it can spend tax dollars on anything it pleases and tie any strings it wants to that spending? What if Congress uses its taxing and spending power to regulate anything it wants to control, whether authorized by the Constitution or not? What if anyone other than members of Congress offered state legislatures cash in return for favorable legislation? What if Congress wrote laws that let it break laws that ordinary people would be prosecuted for breaking? What if the Declaration of Independence says that the government derives its powers from the consent of the governed? What if the government claims to derive powers from some other source that it will not — because it cannot — name? What if we never gave the government the power to spy on us, to print worthless cash, to kill in our names, to force us to buy health insurance or to waste our money by telling us that exercise is good and sugar is bad? What if we never gave the government the power to bribe the poor with welfare or the middle class with tax breaks or the rich with bailouts or the states with cash? What if we don't consent to what has become of the government? What if the Constitution has been tacitly amended by the consent of both political parties, whereby instead of ratifying amendments, all three branches of government merely look the other way when the government violates the Constitution? What if the president cannot constitutionally bomb whatever country he wants? What if the Congress cannot constitutionally exempt its members from the laws that govern the rest of us? What if the courts cannot constitutionally invent a right to kill babies in the womb? What if the federal government is out of control, no matter which party controls it? What if there is only harmony on Capitol Hill when government is growing and personal liberty is shrinking? What if the presidential race this fall will not be between good and evil, between right and left, between free markets and central planning or even between constitutional government and Big Government; but only about how much bigger Big Government should get? What if enough is enough? What do we do about it? What if it's too late?
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Post by philunderwood on Apr 19, 2012 8:41:11 GMT -5
A Government of Waste By Judge Andrew P. Napolitano www.JewishWorldReview.com | What can we learn from allegations against a half-dozen supervisors in the Government Services Administration for wasting, and perhaps stealing, taxpayer dollars on foolishness in Las Vegas, and against a dozen Secret Service agents for dangerously procuring prostitutes in Cartagena, Colombia, while there to prepare for a visit by the president? If the allegations are true — and they seem to be — the behavior of these government workers reflects a view of government hardly consistent with the idea of limited government and public trust. The United States is the only nation in history founded on the principle that people voluntarily gave up some personal freedom in order to form a central government of limited powers and for limited purposes. Those purposes, according to the Constitution, consist primarily of the maintenance of personal freedom, natural rights and property rights, civil liberties and commercial liberties. In all other nations where there is some freedom, government power begrudgingly permitted limited freedoms. In the U.S., personal freedom has permitted the government to have limited powers. Those powers were intended to be used in a stingy way, to maximize freedom and to minimize government. There is no other intellectually honest reading of the Constitution in the era of its creation than this. Even the Big Government folks present at the nation's creation, such as John Adams, who would one day prosecute people for speech critical of him, and Alexander Hamilton, who began our nefarious infatuation with government debt, agreed that the federal government was limited to the powers articulated in and delegated to it by the Constitution, and to those tools necessary and proper to execute the delegated powers. But 230 years later, when governmental power is used for personal gain that is obviously nowhere countenanced in the Constitution, that use perverts the structure that established the government. It also tells us that those in government who have done this do not comport themselves as if they work for us. Rather, they use the power we gave them and the taxes they took from us for silly and tawdry behavior that in no way protects our freedom. Unfortunately for the national discourse, politicians will seek to make political gains over this. These GSA and Secret Service scandals were not caused by one political party. They were caused by the Big Government attitude that those in government can do as they please with the public trust and the public purse so long as they can get away with it. The same Congress that professes outrage over the GSA and the Secret Service escapades does whatever it can get away with every day. It writes whatever laws it wants; it regulates whatever behavior it chooses; it taxes whatever events it thinks will keep it in power. And it does so with utter disregard to whether its work is permitted by the Constitution. The president bombs whatever countries he wants and spies on whatever Americans he chooses and kills whatever persons he fears and lends tax dollars to whatever friends he wishes, as if the Constitution didn't exist. And the courts look the other way. Congressional hearings into these latest scandals will only make the scandals worse, as the holier than thou political class tries to grandstand for network cameras. While they do, they will be wasting more taxpayer dollars. They should know that the witnesses they have summoned will be properly advised not to testify until they are charged and the charges have been resolved, or they have immunity, or they know they are in the clear. In recent memory, only former New Jersey Gov. Jon Corzine has testified and denied allegations against him before they have been filed, and he may soon be indicted not for what he did in private, but for what he said about it in public. Meanwhile, a few blocks away, the government is wasting even more of our tax dollars by prosecuting the most intimidating baseball pitcher in a generation for lying to a congressional committee consisting in part of professional liars; all this about the contents of his blood and urine. Does the government even realize how wasteful and lawless it is?
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Post by philunderwood on Apr 26, 2012 12:00:33 GMT -5
Rick Perry Was Correct By Judge Andrew P. Napolitano www.JewishWorldReview.com | When Texas Gov. Rick Perry, then in the early stages of his short-lived quest for the Republican presidential nomination, referred to Social Security as "a Ponzi scheme," he was excoriated by the press, left and right, and by his fellow Republicans, as well. Earlier this week, government actuaries revealed that Perry was correct. That revelation, which was greeted with a ho-hum by the media, basically announced that by 2033, 21 years from now, the so-called Social Security trust fund will be empty. The only reason this was even announced is because we are approaching a presidential election campaign, and in response to Perry's much-derided claim, the government's actuaries, who originally told the Obama administration and the public that the fund would be solvent until 2036, re-examined their numbers and concluded that it will be in the red three years earlier than they thought. This revelation should come as no surprise to those who monitor the government and its deceptive ways. When he first introduced Social Security, President Franklin D. Roosevelt argued that under Social Security the federal government would be holding your money for you. He deceptively fostered the idea that Social Security would be a savings account, into which employees and employers would make contributions and out of which guaranteed monies would be paid to those who reached the age of 65. Essentially, he claimed that you'd get your money back. The politicians believed him, but the actuaries and the judiciary understood that the government would never hold anyone's money for him — as if it were the custodian of a bank account. In the first of several challenges to the constitutionality of Social Security, the Supreme Court found that the Social Security fund did not consist of your money. It was merely tax revenue. Did you know that? It also held that since Congress' law-making authority is limited to the 16 discrete delegated powers granted to it in the Constitution (a truism few in Congress accept as binding) but its spending authority is open-ended (a conclusion that must torment James Madison's ghost), Congress could collect funds, claim it was holding the funds in a savings account and then spend those funds as it saw fit — for those in need after age 65 or for any other purpose. Did you know that? And, in a curious yet revealing one-liner in the Supreme Court opinion upholding the constitutionality of Social Security, even the court recognized that there would be no trust fund in the traditional sense when it found that the tax dollars collected and supposedly designated for Social Security were "not earmarked in any way." Did you know that? Eventually, the government would acknowledge that what it first called a savings account and then called old-age insurance and then said would be fortified by a trust fund did not even establish a contractual obligation to those who have paid the Social Security tax — which would be all of us. Thus, the feds have conceded and the courts have agreed that the money you have involuntarily contributed to the so-called trust fund is not yours and can be spent by the government as it pleases, just like any other revenue that the feds collect. Did you know that? The trust fund is not money that the government "holds" for you, as FDR promised. It is not money to which you have a lawful claim, as he claimed. It is not a guarantee for you, as he led the public to believe. The so-called trust fund is merely the difference between what is collected and what is paid out. And the feds just acknowledged that in 21 years, they are likely to pay out more than they will collect. Perry did not succeed this time in his quest for the Republican nomination. But he did succeed in articulating a hard truth: The same federal government that prosecutes people like Bernie Madoff for paying out more than they collect does the very same thing under the color of law. Is a Ponzi scheme — which is basically theft by deception — lawful just because the government runs it? The Supreme Court has said yes. Perry has said no. Governor Perry is correct.
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Post by philunderwood on May 3, 2012 8:41:20 GMT -5
The President's Private War By Judge Andrew P. Napolitano www.JewishWorldReview.com | Did you know that the United States government is using drones to kill innocent people in Pakistan? Did you know that the Pakistani government has asked President Obama to stop it and he won't? Did you know that Pakistan is a sovereign country that has nuclear weapons and is an American ally ? Last week, the Obama administration not only acknowledged the use of the drones; it also revealed that it has plans to increase the frequency and ferocity of the attacks. White House counterterrorism adviser John O. Brennan argued that these attacks are "in full accordance with the law" and are not likely to be stopped anytime soon. Brennan declined to say how many people were killed or just where the killings took place or who is doing it. But we know that Obama has a morbid fascination with his plastic killing machines, and we know that these machines are among the favored tools of the CIA. We also know that if the president had been using the military to do this, he'd be legally compelled to reveal it to Congress and eventually to seek permission. We know about the need to tell Congress and ask for permission because of the War Powers Act. This law, enacted in 1973 over President Nixon's veto, permits the president to use the military for 90 days before telling Congress and for 180 days before he needs congressional authorization. Obama must believe that he can bypass this law by using civilian CIA agents, rather than uniformed military, to do his killing. The Constitution limits the presidential use of war powers to those necessary for an immediate defense of the United States or those exercised pursuant to a valid congressional declaration of war. In this case of Pakistan, the president has neither. And international law prohibits entering a sovereign country without its consent. But Brennan argued that the Authorization for Use of Military Force (AUMF), which Congress enacted in 2001 in the aftermath of 9/11 to enable President Bush to pursue the perpetrators of 9/11, is essentially carte blanche for any president to kill whomever he wants, and that the use of drones, rather than the military or rather than arresting those the government believes have conspired to harm us, is a "surgical" technique that safeguards the innocent. Attorney General Eric Holder made a similar unconstitutional argument a few months ago when he stated in defense of the president's using drones to kill Americans in Yemen that the AUMF, plus the careful consideration that the White House gives to the dimensions of each killing and the culpability of each person killed, somehow satisfied the Constitution's requirements for due process. What monstrous nonsense all this is. These killings 10,000 miles from here hardly constitute self-defense and are not in pursuit of a declaration of war. So, what has Congress done about this? Nothing. And what have the courts done about this? Nothing. Prior to the president's ordering the killing of the New Mexico-born and unindicted and uncharged Anwar al-Awlaki, al-Awlaki's American father sued the president in federal district court and asked a judge to prevent the president from murdering his son in Yemen. After the judge dismissed the case, a CIA-fired drone killed al-Awlaki and his American companion and his 16-year-old American son. In his three-plus years in office, Obama has launched 254 drones toward persons in Pakistan, and they collectively have killed 1,277 persons there. The New America Foundation, a Washington think tank that monitors the presidential use of drones in Pakistan, estimates that between 11 and 17 percent of the drone victims are innocent Pakistani civilians. So much for Brennan's surgical strikes. So much for Holder's due process. The president is waging a private war against private persons — even Americans — whose deaths he obviously believes will keep America safe. But he is doing so without congressional authorization, in violation of the Constitution, and in a manner that jeopardizes our freedom. Who will keep us safe from a president who wants to use drones here? How long will it be before local American governments — 313 of which already possess drones — use them to kill here because they are surgical and a substitute for due process? Can you imagine the outcry if Cuba or China launched drones at their dissidents in Florida or California and used Obama's behavior in Pakistan as a justification? How long will it be before even the semblance of our Constitution is gone?
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Post by philunderwood on May 10, 2012 6:59:16 GMT -5
What Constitutes a Fair Trial? By Judge Andrew P. Napolitano www.JewishWorldReview.com | The trial of the alleged masterminds of 9/11, which began last week at the U.S. Naval Base in Guantanamo Bay, Cuba, will address some of the most profound issues of our era. Are natural rights truly inalienable, as Thomas Jefferson wrote in the Declaration of Independence, or can the government take them away from those it hates or fears? Does the Constitution protect the rights of all persons who come in contact with the government, or does it protect only certain Americans, as the government argues? Can the government deny a person due process by changing the rules retroactively, or is the Constitution's guarantee of due process to all persons truly a guarantee? These are all questions that the government does not want to answer. But it should know better, because by structuring the trial after the crime was committed and by establishing retroactive rules — which are prohibited by the Constitution — that have never before been used in any American civilian or military court, Congress has created and the Obama administration will conduct a trial that will resemble none in our history. The trial is being held in Cuba because President Obama caved to political pressure from New York City politicians who did not want the trial at the location where the murders took place. In one of the few rules of criminal procedure laid down in the Constitution itself, the Framers required all trials to be held in the same judicial district where the alleged crime took place. They were familiar with the British practice of trying colonists in London for alleged crimes committed in New York. But today New York politicians and their allies in Congress and the president think they can pick and choose which parts of the Constitution to uphold and which parts they can ignore. The Constitution guarantees the right to confront evidence and witnesses. The colonists were all too familiar with Star Chamber, a British trial system in which evidence against an accused was summarized by a clerk of the court, rather than presented by witnesses with personal knowledge or revealed in documents for all to see. In trials at Gitmo, the government may summarize evidence for the court, and it may keep documents it plans to use away from the defendants. The rules for this trial also permit hearsay: basically, anonymous accusations that were also the hallmark of Star Chamber. They permit the Secretary of Defense, who is the boss of both the prosecutors and the judge, to replace the judge if the secretary is displeased by his rulings. This is a procedure that is taken right out of the Communist Party playbook in Stalinist Russia. Perhaps the most radical departure from American due process and pronounced return to Star Chamber is the congressional authorization for the admission of evidence obtained under torture. There is no question that these defendants were tortured. The CIA has admitted publicly that it waterboarded one of them 183 times and then destroyed the videotapes of the torture so jurors could not see how horrific this procedure is. Torture is so abhorrent to American values that its use by rogue cops has resulted in what is known as the "shocks the conscience of the court" rule. This principle, which has been in place since colonial times, permits the court to dismiss the charges — no matter how grave — when the government's behavior shocks the conscience of the court. And all intentional torture is in that category. I understand the emotions that are fueling these prosecutions, and I understand the pain and loss suffered by those whose loved ones were murdered on 9/11, and I understand the horrific nature of the crimes for which these defendants have been charged. But in America, we still have the rule of law. And that means that no one is above the law and no one is beneath it. Everyone is subject to the law, and the government may not exclude anyone from its protections. That is the essence of our system of justice. It is mandated by the Declaration of Independence and the Constitution, and its preservation is the reason we have fought our just wars. This trial may have dire unforeseen consequences. From the president who opposed all this when he was a senator but now effectuates it, to members of Congress who enacted the Military Commissions Act that authorizes incarceration after acquittal (a procedure even the Soviets did not utilize), to the victims' families who surely would not want this rough justice visited upon their children; all these people now crying for blood could one day see the ruination of due process in America, with this case as precedent. What constitutes a fair trial is the due process of American justice, which is guaranteed and required by the Constitution itself. If we deviate from the moral values of that system for the people we hate, woe to us for making law retroactively and based on hatred.
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Post by philunderwood on May 17, 2012 6:57:12 GMT -5
Is There a Drone in Your Backyard? By Judge Andrew P. Napolitano www.JewishWorldReview.com | Earlier this week, the federal government announced that the Air Force might be dispatching drones to a backyard near you. The stated purpose of these spies in the sky is to assist local police to find missing persons or kidnap victims, or to chase bad guys. If the drone operator sees you doing anything of interest (Is your fertilizer for the roses or to fuel a bomb? Is that Sudafed for your cold or your meth habit? Are you smoking in front of your kids?), the feds say they may take a picture of you and keep it. The feds predict that they will dispatch or authorize about 30,000 of these unmanned aerial vehicles across America in the next 10 years. Meanwhile, more than 300 local and state police departments are awaiting federal permission to use the drones they already have purchased — usually with federal stimulus funds. The government is out of control. If the police use a drone without a warrant to see who or what is in your backyard or your bedroom, or if while looking for a missing child the drone takes a picture of you in your backyard or bedroom and the government keeps the picture, its use is unnatural and unconstitutional. I say "unnatural" because we all have a natural right to privacy; it is a fundamental right that is inherent in our humanity. All of us have times of the day and moments in our behavior when we expect that no one — least of all the government — will be watching. When the government watches us during those times, it violates our natural right to privacy. It also violates our constitutional right to privacy. The Supreme Court has held consistently that numerous clauses in the Bill of Rights keep the government at bay without a warrant. Even when we don't have an expectation of privacy, we do have a right to be left alone. But merely watching us in public isn't enough for the police, as many street corner cameras are equipped with listening devices and tiny megaphones. We can expect that these devices will soon bark commands: "Put down that BlackBerry." "Look to your right before crossing." "Don't kiss her; a car is coming." Actually, Big Brother is coming, and he's not smiling. Big Brother is watching from the skies, as well as the streets. This started when the Department of Defense decided to offer help to police — and they are prepared to accept. Never mind that the military may not lawfully operate within our borders, except in the case of rebellion, and then only when publicly authorized by the president. Never mind that the military may not lawfully be used for law enforcement, except in the case of disaster, and then only when publicly authorized by the president. And never mind that this use of drones by the Air Force was not the result of legislation debated and enacted by Congress, but was done under the authority of the president alone. Add to all this the use of drones to kill people. President Obama has argued that he can use drones to kill Americans overseas, whose deaths he believes will keep us all safer, without any constitutional due process whatsoever. His attorney general has argued that the president's careful consideration of each target and the narrow use of deadly drones are an adequate substitute for due process. Of course, no court has ever ruled that way. The president's national security adviser has argued that the use of drones is humane since they are "surgical" and only kill their targets. Of course, that's not true, but it misses the point. Without a declaration of war, the president can't lawfully kill anyone, no matter how humane his killing. How long will it be before the Air Force and the police adopt the unconstitutional arguments of the president's wrongheaded advisers and use the drones not only to spy but also to kill Americans in America? The whole reason we have a Bill of Rights is to assure that tyranny does not happen here, to guarantee that the government to which we have supposedly consented will leave us alone. Do you think the government accepts that? Would you feel safe with a drone in your backyard? Would you feel like you were in America?
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Post by philunderwood on May 24, 2012 8:42:30 GMT -5
What If We Have Only Memories of Freedom? By Judge Andrew P. Napolitano www.JewishWorldReview.com | What if Memorial Day reminds us of times when we had more freedom? What if freedom is dying right under our eyes? What if the memory of the past is more fulfilling than the reality of the present? What if the federal government could write any law, regulate any behavior and tax any event, no matter what the Constitution authorized? What if the majority in Congress rejects the idea of limited government and views the Constitution as granting it blanket power to do whatever it can get away with? What if the constitutional prohibition on the government's taking of life, liberty or property without due process of law is only for show and is not for real? What if the House of Representatives seriously considered letting the military lock up whatever Americans the president ordered the troops to arrest, without charges filed or lawyers present or a judge presiding? What if the House seriously debated this idea of indefinite military detention of Americans in America and actually voted in favor of it? What if this unconstitutional monstrosity becomes the law and your right to due process depends on whether you remain with the majority, stay silent or behave properly? What if the Constitution's guarantees are not guarantees at all, but are subject to the whims of whoever is in power? What if the Declaration of Independence, which articulated the moral authority for the revolution against Great Britain, recognized that our rights come from our Creator and are inalienable? What if very few in government recognize the divine origin of human freedom and its natural integrity to our humanity? What if the government only permitted freedom so long as it was exercised as the government pleases? What if the government rejected the basic values of every person's right to life and liberty and property in favor of some collective good, where the government could arrest you without evidence, ration your freedom to suit the general welfare and take your property from you and sell it at a profit? What if the government could hire thugs to keep you safe? What if it gave the thugs uniforms and badges and sent them to airports? What if it gave them rubber gloves to wear and told them they could touch you and your children and your parents however and wherever they wished? What if these thugs touched the private parts of little babies and old ladies and intentionally restrained those who have criticized them while the rest of us just watched and let this happen? What if the airlines did a better job of keeping their customers happy and their property safe than the thugs did? What if the government spent millions of your tax dollars to advertise what a great job it's doing? What if the government charged the airlines millions of their dollars for the illusory services these thugs are rendering? What if the government's thugs never caught a single bad guy intent on harming a flight in America? What if the government's thugs actually let weapons and bad guys onto planes because the thugs are dopes who have no competition, who can't be sued and who won't be fired? What if the government found more dopes and dupes and convinced them that they should conspire to commit acts of terrorism? What if the idea for terrorist acts and the means for committing them came from the government? What if no real threats were involved in these games and no real weapons were used, just fake threats and fake weapons, fomented and provided by the government? What if the government created these phony crimes just so that it could solve them? What if no one was ever in danger from these government-created crimes, except those the government tricked? What if the government did this again and again and then boasted that it was keeping us safe from its own creations? What if Congress and the media and even the courts fell for this? What if, on Memorial Day, we remember times that were more free than today? What if, on Memorial Day, when we think of those who died for our freedom, we end up recognizing that the freedom they died for is dying? What if it becomes fashionable for the government to ignore the Constitution? What if the Constitution dies because the government stops following it? What if, next Memorial Day, freedom is just a memory? What do we do about it?
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Post by twinder on May 24, 2012 19:33:58 GMT -5
The analogy he uses with the TSA is frightening. I've often wondered just how many planes are subject to terrorist attacks throughout the world. You don't hear of them and I cannot find any data on the net about it. Are we really any safer now than we were pre 9/11? One has to wonder about these things.
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Post by philunderwood on May 31, 2012 6:34:11 GMT -5
The Secret Kill List By Judge Andrew P. Napolitano www.JewishWorldReview.com | The leader of the government regularly sits down with his senior generals and spies and advisers and reviews a list of the people they want him to authorize their agents to kill. They do this every Tuesday morning when the leader is in town. The leader once condemned any practice even close to this, but now relishes the killing because he has convinced himself that it is a sane and sterile way to keep his country safe and himself in power. The leader, who is running for re-election, even invited his campaign manager to join the group that decides whom to kill. This is not from a work of fiction, and it is not describing a series of events in the Kremlin or Beijing or Pyongyang. It is a fair summary of a 6,000-word investigative report in The New York Times earlier this week about the White House of Barack Obama. Two Times journalists, Jo Becker and Scott Shane, painstakingly and chillingly reported that the former lecturer in constitutional law and liberal senator who railed against torture and Gitmo now weekly reviews a secret kill list, personally decides who should be killed and then dispatches killers all over the world — and some of his killers have killed Americans. We have known for some time that President Obama is waging a private war. By that I mean he is using the CIA on his own — and not the military after congressional authorization — to fire drones at thousands of persons in foreign lands, usually while they are riding in a car or a truck. He has done this both with the consent and over the objection of the governments of the countries in which he has killed. He doesn't want to talk about this, but he doesn't deny it. How chilling is it that David Axelrod — the president's campaign manager — has periodically seen the secret kill list? Might this be to keep the killings politically correct? Can the president legally do this? In a word: No. The president cannot lawfully order the killing of anyone, except according to the Constitution and federal law. Under the Constitution, he can only order killing using the military when the U.S. has been attacked, or when an attack is so imminent and certain that delay would cost innocent American lives, or in pursuit of a congressional declaration of war. Under federal law, he can only order killing using civilians when a person has been sentenced lawfully to death by a federal court and the jury verdict and the death sentence have been upheld on appeal. If he uses the military to kill, federal law requires public reports of its use to Congress and congressional approval after 180 days. The U.S. has not declared war since World War II. If the president knows that an attack on our shores is imminent, he'd be hard-pressed to argue convincingly that a guy in a truck in a desert 10,000 miles from here — no matter his intentions — poses a threat to the U.S. so imminent and certain that he needs to be killed on the spot in order to save the lives of Americans who would surely die during the time it would take to declare war on the country that harbors him, or during the time it would take to arrest him. Under no circumstances may he use civilian agents for non-judicial killing. Surely, CIA agents can use deadly force to protect themselves, but they may not use it offensively. Federal laws against murder apply to the president and to all federal agents and personnel, wherever they go on the planet. Since 9/11, the United States government has set up national security systems that function not under the Constitution, not under the Geneva Conventions, not under the rule of law, not under the rules of war, not under federal law, but under a new secret system crafted by the Bush administration and personally directed by Obama, the same Obama who condemned these rules as senator and then extended them as president. In the name of fighting demons in pick-up trucks and wars that Congress has never declared, the government shreds our rights, taps our cellphones, reads our emails, kills innocents abroad, strip searches 87-year-old grandmothers in wheelchairs and 3-year-old babies in their mothers' arms, and offers secrecy when the law requires accountability. Obama has argued that his careful consideration of each person he orders killed and the narrow use of deadly force are an adequate and constitutional substitute for due process. The Constitution provides for no such thing. He has also argued that the use of drones to do his killing is humane since they are "surgical" and only kill their targets. We know that is incorrect. And he has argued that these killings are consistent with our values. What is he talking about? The essence of our values is the rule of law, not the rule of presidents.
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Post by "Q" on May 31, 2012 11:59:19 GMT -5
"Secret Kill List" is not so secret anymore.
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Post by philunderwood on Jun 7, 2012 6:39:58 GMT -5
Where Is The Outrage? By Judge Andrew P. Napolitano www.JewishWorldReview.com | For the past few weeks, I have been writing in this column about the government's use of drones and challenging their constitutionality on Fox News Channel where I work. I once asked on air what Thomas Jefferson would have done if — had drones existed at the time — King George III had sent drones to peer inside the bedroom windows of Monticello. I suspect that Jefferson and his household would have trained their muskets on the drones and taken them down. I offer this historical anachronism as a hypothetical only, not as one who is urging the use of violence against the government. Nevertheless, what Jeffersonians are among us today? When drones take pictures of us on our private property and in our homes, and the government uses the photos as it wishes, what will we do about it? Jefferson understood that when the government assaults our privacy and dignity, it is the moral equivalent of violence against us. The folks who hear about this, who either laugh or groan, cannot find it humorous or boring that their every move will be monitored and photographed by the government. Don't believe me that this is coming? The photos that the drones will take may be retained and used or even distributed to others in the government so long as the "recipient is reasonably perceived to have a specific, lawful governmental function" in requiring them. And for the first time since the Civil War, the federal government will deploy military personnel inside the United States and publicly acknowledge that it is deploying them "to collect information about U.S. persons." It gets worse. If the military personnel see something of interest from a drone, they may apply to a military judge or "military commander" for permission to conduct a physical search of the private property that intrigues them. And, any "incidentally acquired information" can be retained or turned over to local law enforcement. What's next? Prosecutions before military tribunals in the U.S.? The quoted phrases above are extracted from a now-public 30-page memorandum issued by President Obama's Secretary of the Air Force on April 23, 2012. The purpose of the memorandum is stated as "balancing ... obtaining intelligence information ... and protecting individual rights guaranteed by the U.S. Constitution..." Note the primacy of intelligence gathering over freedom protection, and note the peculiar use of the word "balancing." When liberty and safety clash, do we really expect the government to balance those values? Of course not. The government cannot be trusted to restrain itself in the face of individual choices to pursue happiness. That's why we have a Constitution and a life-tenured judiciary: to protect the minority from the liberty-stealing impulses of the majority. And that's why the Air Force memo has its priorities reversed — intelligence gathering first, protecting freedom second — and the mechanism of reconciling the two — balancing them — constitutionally incorrect. Everyone who works for the government swears to uphold the Constitution. It was written to define and restrain the government. According to the Declaration of Independence, the government's powers come from the consent of the governed. The government in America was not created by a powerful king reluctantly granting liberty to his subjects. It was created by free people willingly granting limited power to their government — and retaining that which they did not delegate. The Declaration also defines our liberties as coming from our Creator, as integral to our humanity and as inseparable from us, unless we give them up by violating someone else's liberties. Hence the Jeffersonian and constitutional beef with the word "balancing" when it comes to government power versus individual liberty. The Judeo-Christian and constitutionally mandated relationship between government power and individual liberty is not balance. It is bias — a bias in favor of liberty. All presumptions should favor the natural rights of individuals, not the delegated and seized powers of the government. Individual liberty, not government power, is the default position because persons are immortal and created in God's image, and governments are temporary and based on force. Hence my outrage at the coming use of drones — some as small as golf balls — to watch us, to listen to us and to record us. Did you consent to the government having that power? Did you consent to the American military spying on Americans in America? I don't know a single person who has, but I know only a few who are complaining. If we remain silent when our popularly elected government violates the laws it has sworn to uphold and steals the freedoms we elected it to protect, we will have only ourselves to blame when Big Brother is everywhere. Somehow, I doubt my father's generation fought the Nazis in World War II only to permit a totalitarian government to flourish here. Is President Obama prepared to defend this? Is Gov. Romney prepared to challenge it? Are you prepared for its consequences?
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Post by philunderwood on Jun 15, 2012 7:55:44 GMT -5
Squealing Versus Killing By Judge Andrew P. Napolitano www.JewishWorldReview.com | If you are still listening to those in the political class who are falling over each other to condemn leaks from the government to the media, you'd think the leaks had revealed private information in which the public has no legitimate interest, or perhaps a planned secret government mission to rescue innocents. Neither is the case. Republicans and Democrats in Congress, most of them from the House and Senate intelligence committees, have blasted the White House for leaking to The New York Times and others the existence of President Obama's secret kill list and his cyber-warfare against Iran. According to those doing the blasting, the leaks were made in order to bolster the president's war-on-terror credentials with voters in anticipation of an onslaught against those credentials by Gov. Mitt Romney in the coming fall presidential campaign. So, who has violated the Constitution and federal law, who has caused more harm and who has performed more of a disservice to the nation: those who leaked the truth to the media, or the president, who caused death and destruction among those he hates and fears? We already know the basic facts, as the White House has denied none of this. The president meets every Tuesday morning with a select group of military, intelligence, national security and, occasionally, political advisers and reviews the background and photos of persons in foreign countries whom he hates or fears, some of whom are Americans. He then personally decides whom among them to kill. Then he dispatches civilian agents of the government, no doubt the CIA, to do the killing using drones. He uses the CIA to do this because if he used the military, federal law requires public reporting of that use and, eventually, congressional approval. Some of the killings have taken place in Yemen, a country that has welcomed them, and some in Pakistan, a country that has condemned them. We are at war with neither. We also know that the president has directed the CIA to use technology to disrupt the workings of computers in Iran on a grand scale. The government of Iran consists of a gaggle of religious fanatics and crackpots who have threatened the U.S. and Israel until they are blue in the face, but these misguided authoritarians have not harmed the U.S. or any of our allies. And of course, we are not at war with Iran. Nevertheless, the president, with the knowledge of certain members of Congress but without the consent of the House and the Senate as the law requires, destabilized and caused physical harm and financial loss to millions of innocent people in Iran — physicians, hospital administrators, businesspeople, academics, pro-Western students, shopkeepers — when major computer servers there were immobilized. Just imagine the chaos — and the political reaction — should Iranian agents cause all that computer damage here. The president is evading federal law on the use of the military by having the now-paramilitary CIA kill people in foreign countries with drones and disrupt a foreign population with a cyber-war. And he is violating the Constitution and federal law by starting wars on his own. But the loudest and most sanctimonious of politicians are not demanding that the president follow the Constitution and the laws he has sworn to uphold. Rather, they are demanding to know who told the media about the president's war making. Which is ultimately more harmful to freedom: that the president on his own kills and maims and destroys, or that some people in our own government who have greater fidelity to the Constitution than loyalty to an out-of-control presidency — and who are protected by law when they reveal government crimes — tell us what the president is up to? What kind of politicians complain about truthful revelations of unconstitutional behavior by the government, but not about death and destruction, and, let's face it, criminal abuse of power by the president? Only cynical power-hungry politicians who have disdain for the Constitution they have sworn to uphold could do this with a straight face. The president's use of drones and cyber-warfare to kill people and to destabilize a foreign population, without a formal declaration of war, is the moral equivalent of an illegal war. When President Nixon started a war on his own in Cambodia, Congress enacted legislation over his veto to prevent that from happening again. Yet, the members of Congress who are demanding to know who told the truth to the media about President Obama's war making apparently agree with his unlawful use of the war-making power he has stolen from them. How base our culture has become when the hunt for truth tellers is more compelling than the cessation of unlawful government killing. If the president can fight private wars and start public ones on his own, and the public is induced to focus on those who have told us what he is doing and not on his misdeeds themselves, and Congress remains a potted plant or willing dupe, the president can get away with anything.
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Post by philunderwood on Jun 21, 2012 7:33:12 GMT -5
Can the President Rewrite Federal Law? By Judge Andrew P. Napolitano www.JewishWorldReview.com | Here we go again. Is the Constitution merely a guideline to be consulted by those it purports to regulate, or is it really the supreme law of the land? If it is just a guideline, then it is meaningless, as it only will be followed by those in government when it is not an obstacle to their purposes. If it is the supreme law of the land, what do we do when one branch of government seizes power from another and the branch that had its power stolen does nothing about it? Late last week, President Obama, fresh from a series of revelations that he kills whomever he pleases in foreign lands, that the U.S. military is actually fighting undeclared wars in Somalia and Yemen, and that the CIA is using cyber warfare — computers — to destabilize innocents in Iran, announced that he has rewritten a small portion of federal immigration law so as to accommodate the needs of young immigrants who came to the U.S. as children and remained here. By establishing new rules governing deportation, rules that Congress declined to enact, the president has usurped the power to write federal law from Congress and commandeered it for himself. Immigrants should not be used as political pawns by the government. When government does that, it violates the natural law. Our rights come from our humanity, and our humanity comes from G0d. Our rights are natural and integral to us, and they do not vary by virtue of, and cannot be conditioned upon, the place where our mothers were physically located at the time of our births. Federal law violates the natural law when it interferes with whom you invite to your home or employ in your business or to whom you rent your property or with whom you walk the public sidewalks. When the government restricts freedom of association based on an immutable characteristic of birth — like race, gender or the place of birth — it is engaging in the same type of decision-making that brought us slavery, Jim Crow and other invidious government discrimination. Regrettably, the feds think they can limit human freedom by quota and by geography. And they have done this for base political reasons. Along comes the president, and he has decided that he can fix some of our immigration woes by rewriting the laws to his liking. Never mind that the Constitution provides that his job is "to take care that the laws be faithfully executed," and that "all legislative power" in the federal government has been granted to Congress. He has chosen to bypass Congress and disregard the Constitution. Can he do this? There is a valid and constitutional argument to be made that the president may refrain from defending and enforcing laws that he believes are palpably and demonstrably unconstitutional. These arguments go back to Thomas Jefferson, who refused to defend or enforce the Alien and Sedition Acts because, by punishing speech, they directly contradicted the First Amendment. Jefferson argued that when a law contradicts the Constitution, the law must give way because the Constitution is the supreme law of the land and all other laws are inferior and must conform to it. This argument is itself now universally accepted jurisprudence — except by President Obama, who recently and inexplicably questioned the jurisdiction of the Supreme Court to invalidate the Affordable Health Care Act on the basis that it is unconstitutional. Nevertheless, there is no intellectually honest argument to be made that the president can pick and choose which laws to enforce based on his personal preferences. And it is a profound violation of the Constitution for the president to engage in rewriting the laws. That's what he has done here. He has rewritten federal law. Only Congress can lay down specifics such as in order to avoid deportation and qualify for a two-year work visa, one must have entered the U.S. prior to age 16 and possess a valid American high school diploma or be a military veteran, as the president now requires. By altering the law in this manner — by constructing the requirements the government will impose — the president has violated his oath to enforce the laws as they are written. His second responsibility in the Constitution (the first is to defend the Constitution) is to enforce federal laws as Congress has written them — hence the employment of the word "faithfully" in the Constitution — not as he wishes them to be. Congress should have enacted years ago what the president is now doing on his own, because it is unjust to punish children for the behavior of their parents, and it is unjust to restrict freedom based on the place of birth. But this can be remedied only by Congress. If the president can rewrite federal laws that he doesn't like, there is no limit to his power. Then, he will not be a president. He will be a king.
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Post by philunderwood on Jun 28, 2012 7:40:42 GMT -5
Restraining Arizona, Unleashing the President By Judge Andrew P. Napolitano www.JewishWorldReview.com | When the Obama administration decided that it had no interest in preventing the movement of undocumented aliens from Mexico into the southwest United States, the State of Arizona decided to take matters into its own hands. Based on a novel theory of constitutional law, namely, that if a state is unhappy with the manner in which federal law is being enforced or not being enforced, it can step into the shoes of the feds and enforce federal law as it wishes the feds would, it enacted legislation to accomplish that. The legislation created two conflicts that rose to the national stage. The first is whether any government may morally and legally interfere with freedom of association based on the birthplace of the person with whom one chooses to associate. The second is whether the states can enforce federal law in a manner different from that of the feds. Regrettably, in addressing all of this earlier in the week, the Supreme Court overlooked the natural and fundamental freedom to associate. It is a natural right because it stems from the better nature of our humanity, and it is a fundamental right because it is protected from governmental interference by the Constitution itself. Freedom of association means that without force or fraud you may freely choose to be in the presence of whomever you please, and the government cannot force you to associate with someone with whom you have chosen not to associate, and the government cannot bar anyone with whom you wish to associate from associating with you. Without even addressing the now-taken-for-granted federal curtailment of the right to associate with someone born in a foreign country and whose presence is inconsistent with arbitrary federal document requirements and quotas, the Supreme Court earlier this week struck down three of the four challenged parts of the Arizona statute, which attempted to supplant the federal regulation of freedom of association with its own version. It did so because the Constitution specifically gives to Congress the authority to regulate immigration, and Congress, by excluding all other law-writing bodies in the U.S. from enacting laws on immigration, has pre-empted the field. The court specifically invalidated the heart and soul of this misguided Arizona law by ruling definitively that in the area of immigration, the states cannot stand in the shoes of the feds just because they disapprove of the manner in which the feds are or are not enforcing federal law. The remedy for one's disapproval of the manner of federal law enforcement is to elect a different president or Congress; it is not to tinker with the Constitution. Federal law cannot have a different meaning in different states, the court held. And just as the feds must respect state sovereignty in matters retained by the states under the Constitution (though they rarely do), so, too, the states must respect federal sovereignty in matters that the Constitution has unambiguously delegated to the feds. The court neither upheld nor invalidated Section 2B of the Arizona statute — which permits a police inquiry of the immigration status of those arrested for non-immigration offenses — because the court found that, just as when the police stop a person for a violation of state or local law they may check their computers for outstanding warrants for the person they have stopped, so, too, they may check their computers for the person's immigration status. Shortly after the opinion came down, the Obama administration announced that it will cease providing Arizona police with the immigration status of persons in that state, and it will not detain anyone arrested by Arizona police for immigration violations unless those violations rise to the level of a felony, which undocumented presence in the U.S. is not. Thus, this constitutional rebuke to Arizona has become a personal license for the president. He now has demonstrated that he will not faithfully enforce federal law as the Constitution requires. He will only enforce the laws he agrees with. So, since the Arizona police cannot arrest and incarcerate anyone for undocumented presence and since they cannot deliver anyone so arrested to the feds, what legitimate governmental purpose will be served by what remains of Arizona's law? None. But the police still will harass any dark-skinned person in Arizona that they please. Have we lost sight of the perpetual tension between human freedom and human law? Either freedom is integral to our nature, as Thomas Jefferson wrote in the Declaration of Independence, or it comes from the government, as the president and the Supreme Court demonstrated they believe this week. If it is integral to our nature, no government can tell us with whom we may freely associate. If it comes from the government, we should abandon all hope, as the government will permit the exercise of only those freedoms that are not an obstacle to the contemporary exercise of its powers.
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Post by philunderwood on Jul 3, 2012 7:25:59 GMT -5
A Vast New Federal Power By Judge Andrew P. Napolitano www.JewishWorldReview.com | If you drive a car, I'll tax the street, If you try to sit, I'll tax your seat. If you get too cold, I'll tax the heat, If you take a walk, I'll tax your feet. — The Beatles in "The Taxman" Of the 17 lawyers who have served as chief justice of the United States, John Marshall — the fourth chief justice — has come to be known as the "Great Chief Justice." The folks who have given him that title are the progressives who have largely written the history we are taught in government schools. They revere him because he is the intellectual progenitor of federal power. Marshall's opinions over a 34-year period during the nation's infancy — expanding federal power at the expense of personal freedom and the sovereignty of the states — set a pattern for federal control of our lives and actually invited Congress to regulate areas of human behavior nowhere mentioned in the Constitution. He was Thomas Jefferson's cousin, but they rarely spoke. No chief justice in history has so pronouncedly and creatively offered the feds power on a platter as he. Now he has a rival. No one can know the true motivations for the idiosyncratic rationale in the health care decision written by Marshall's current successor, John Roberts. Often five member majorities on the court are fragile, and bizarre compromises are necessary in order to keep a five-member majority from becoming a four-member minority. Perhaps Chief Justice Roberts really means what he wrote — that congressional power to tax is without constitutional limit — and his opinion is a faithful reflection of that view, without a political or legal or intra-court agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of Marshall's big government aphorisms: The power to tax is the power to destroy. The reasoning underlying the 5 to 4 majority opinion is the court's unprecedented pronouncement that Congress' power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the IRS from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility — all of which the statute says it is — but rather is an inducement in the form of a tax. The majority likened this tax to the federal taxes on tobacco and gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving. The statute is more than 2,400 pages in length, and it establishes the federal micromanagement of about 16 percent of the national economy. And the court justified it constitutionally by calling it a tax. A 7 to 2 majority (which excluded two of the progressive justices who joined the chief in rewriting tax law and included the four dissenting justices who would have invalidated the entire statute as beyond the constitutional power of Congress) held that while Congress can regulate commerce, it cannot compel one to engage in commerce. The same majority ruled that Congress cannot force the states to expand Medicaid by establishing state insurance exchanges. It held that the congressional command to establish the exchanges combined with the congressional threat to withhold all Medicaid funds — not just those involved with the exchanges — for failure to establish them would be so harmful to the financial stability of state governments as to be tantamount to an assault on state sovereignty. This leaves the exchanges in limbo, and it is the first judicial recognition that state sovereignty is apparently at the tender mercies of the financial largesse of Congress. The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law's most fervent supporters did not make or anticipate the court's argument in its support. Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing. In all the history of the court, it never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship. I wonder whether the chief justice realizes what he and the progressive wing of the court have done to our freedom. If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry. Even The Beatles understood this.
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Post by relenemiller on Jul 3, 2012 23:45:59 GMT -5
I'm the odd ball I guess....I believe that Roberts knew precisely what he was doing and that he and other judges handed this mess back to the public. I'm hoping that this is a blessing in disguise...I can't imagine that Roberts was this intentionally stupid.
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Post by philunderwood on Jul 12, 2012 8:11:09 GMT -5
We Are at a Turning Point By Judge Andrew P. Napolitano www.JewishWorldReview.com | Presently in America, nearly half of all households receive either a salary or substantial benefits from the government. Presently in America, nearly half of all adults pay no federal income taxes. Presently in America, the half that pay no income taxes receive the bulk of their income courtesy of the government, but ultimately from the half that do. This money is extracted involuntarily from the paying half by a permanent bureaucracy that extracts and gives away more each year no matter who is running the government. The recipients of these transfer payments rely upon them for subsistence, so they have a vested financial interest in sending to Washington those who will continue to take your money and give it to them. It is no wonder that we are now saddled with the micromanagement of health care by the same bureaucratic mindset that mismanages the Post Office and everything else the federal government runs. It should not be surprising to know that presently in America, half of the people actually want the government to take care of their needs. The same was the case under Communist regimes, but here those folks vote. Hence, we have laws that force us to be charitable to those whom the government designates as worthy of our charity, that limit the amount of salt that restaurants can put into our food, that permit the government to watch us on street corners and subways and in the lobbies of buildings, that let the president fight wars of opportunity, that permit the Federal Reserve to print money with no value and inflate prices and destroy savings, that allow the government to listen to us on our cellphones and use those phones to follow us wherever we go, and, according to CIA Director David Petraeus, that let the government anticipate our movements inside our homes. And as of the last week in June, the government has a vast new power that was brought to us by the Supreme Court's latest attack on personal freedom. Congress can now lawfully command any behavior of individuals that it pleases — whether or not the subject of the behavior is a power granted to Congress by the Constitution — and it may punish noncompliance with that command, so long as the punishment is called a tax. Justice Antonin Scalia's whimsical query during the Supreme Court oral argument on the health care law about whether Congress could make him eat broccoli suddenly isn't as funny as it was when he asked it, because the answer is: It can fine him for not eating broccoli, so long as it calls that fine a tax. Quick: If you call a tail a leg, how many legs does a dog have? Answer: Four, because calling a tail a leg doesn't make a tail a leg. How did we get here? We got here because voters and the government we elected, and even the courts the popular branches appointed and confirmed, have lost sight of first principles. When Thomas Jefferson wrote in the Declaration of Independence that our rights to life, liberty and the pursuit of happiness are a part of our humanity, and when we fought and won the Revolution under that premise, and when the first Congress enacted that language as the first federal law, this became the irrevocable recognition of the Natural Law as the basis for our personal freedom and limited government. Since our rights come from our humanity, they don't come from the government. But you would never know that from looking at the government. In New York City, where I work at Fox News Channel, we are all embroiled in two disputes this summer over the constitutional role of the government in our lives. The mayor, a self-made billionaire who likes donuts and has bodyguards but wants to tell others how to live in private and in public, is trying to ban soda pop in containers larger than 16 ounces and wants the police to be able to stop and frisk anyone on a whim — and all in the name of health and safety. He is actually banning freedom. Imagine Jefferson being told what to eat or stopped and frisked on a whim. And then imagine the Supreme Court telling him that he must pay a tax if he fails to comport his personal private behavior as Congress — which doesn't believe in privacy or personal freedom — commands. Here is how you can tell that these are bad days for freedom: Does the government need your permission to violate your rights, or do you need the government's permission to exercise them? The answer is painfully obvious. Presently in America, what are we going to do about it?
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Post by philunderwood on Jul 19, 2012 7:46:48 GMT -5
The Rule of Law By Judge Andrew P. Napolitano www.JewishWorldReview.com | The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the Rule of Law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American Republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom. The Rule of Law is a three-legged stool on which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress. The second leg is that no one is above the law and no one is beneath it. Thus, the law's restraints on force and fraud need to restrain everyone equally, and the law's protections against force and fraud must protect everyone equally. This leg removes from the discretion of those who enforce the law the ability to enforce it or to afford its protections selectively. This principle also requires that the law enforcers enforce the law against themselves. Of course, this was not always the case. In 1628, the British Parliament spent days debating the question "Is the king above the Rule of Law, or is the Rule of Law above the king?" Thankfully, the king lost — but only by 10 votes out of several hundred cast. The third leg of the Rule of Law requires that the structures that promulgate, enforce and interpret law be so fundamental — Congress writes the laws, the president enforces the laws, the courts interpret the laws — that they cannot be changed retroactively or overnight by the folks who administer them. Stated differently, this leg mandates that only a broad consensus can change the goals or values or structures used to implement the laws; they cannot be changed by atrophy or neglect or crisis. The values in America are set forth in the Declaration of Independence, and the governmental structures in America are set forth in the Constitution. The former — that our rights are inalienable and come from our Creator and not from the government — is not merely a recitation of Thomas Jefferson's musings. The Declaration is the articulation of our values then and now, and it, too, is the law of the land. The Constitution was written — largely by James Madison — to define and to limit the federal government, and it was quickly amended by adding the Bill of Rights so as to be sure that natural rights would be respected by the government. This tension between the power of the majority — at the ballot box or in Congress — and the rights of the minority — whether a discrete class of persons or a minority of one — is known as the Madisonian dilemma. Stated differently, the Constitution provides for protection against the tyranny of the majority. In our system, the power to resolve the dilemma is reposed into the hands of the judiciary, and those who have that power are to resolve it without regard to popularity or politics. Their oath is to the Constitution. They have the final say on what the laws mean. If they follow the Rule of Law, they will invalidate that which the government has done and which is properly challenged before them and which is not authorized by the Constitution. Their very purpose is to be anti- democratic, lest the popular majority takes whatever lives, liberties or property it covets. In return for life tenure, we expect judicial modesty, and we demand constitutional fidelity — not political compromise. In our era, the violations of the Rule of Law have become most troublesome when the government breaks its own laws. Prosecute Roger Clemens for lying to Congress? What about all the lies Congress tells? Prosecute John Edwards for cheating? What about all the cheating in Congress when it enacts laws it hasn't read? Bring the troops home from the Middle East? What about all the innocents killed secretly by the president using CIA drones? Can't find a way to justify Obamacare under the Constitution? Why not call it what its proponents insisted it isn't — a tax? We live in perilous times. The president acts above the Rule of Law and fights his own wars. Congress acts below the Rule of Law by letting the president do whatever he can get away with. And this summer, the Supreme Court rewrote the Rule of Law. What do we do about it?
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Post by philunderwood on Aug 9, 2012 7:49:30 GMT -5
Gazillions By Judge Andrew P. Napolitano www.JewishWorldReview.com | Gazillions. That's the number of times the federal government has spied on Americans since 9/11 through the use of drones, legal search warrants, illegal search warrants, federal agent-written search warrants and just plain government spying. This is according to Sen. Rand Paul, R-Ky., who, when he asked the government to tell him what it was doing to violate our privacy, was given a classified briefing. The senator — one of just a few in the U.S. Senate who believes that the Constitution means what it says — was required by federal law to agree not to reveal what spies and bureaucrats told him during the briefing. The rules for classified briefings of members of Congress on areas of government behavior that the government wants to keep from its employers — the American people — are a real Catch-22. Those rules allow representatives and senators to interrogate government officials about government behavior that they are afraid to reveal, and they require those officials to answer honestly and completely. But the rules keep the interrogations secret, and they expressly prohibit members of Congress from telling anyone what they have learned. So Paul and his colleagues who joined in the secret briefing now know the terrible truth about the government watching us, but they cannot reveal what they know. Paul — who is the son of Rep. Ron Paul, the greatest congressional defender of limited government in our era — when asked what he learned at these secret briefings and aware that he could be prosecuted for telling the truth, chose a fictitious word to describe the vast number of violations of privacy at the hands of federal agents: gazillions. Paul's personal courage in using a word like gazillions to convey an oblique message of truth in the face of an unjust law that commanded his silence reminded me of St. Thomas More's silence in the face of an unjust law that commanded his assent to the king's headship of the church. The feds are no happier with the senator's personal courage than the king was with St. Thomas More's, but there is not much they can do about it. If you check out your dog-eared dictionary, you will find that if it is listed at all, it gets a mention as slang. Yet most of us hearing or seeing that word understand it to mean some huge — perhaps even incalculable — number. The point here is terrifying. If the government derives its powers from the consent of the governed, how can it do things to us to which we have not consented? And when it does these things — like send a drone over your back yard to learn who is coming to your Saturday barbeque or to see what fertilizer you are using in your vegetable garden or to take a peek into your living room or bedroom — and when the laws the government has written prevent our elected representatives from telling us what it is doing, we are at the doorsteps of tyranny. The government gave Paul the distinct impression that it was afraid of our exercise of our personal freedoms, and thus it needs to watch us as we do so. This is the same government whose stated principal purpose is to preserve, protect and defend the Constitution, and thus personal freedom. What has become of the Jeffersonian value of the primacy of the individual over the government in a free society? How have we lost the American value that the government works for us, and we don't work for the government? What remains of the constitutionally guaranteed right to be left alone? The answer to these questions goes to the nature of human freedom and personal courage. Freedom lies in our hearts, but to survive, it must do more than just lie there. Its essence is the exercise of unfettered choices, and the unfettered choices we make address our perpetual yearning for truth. This is a natural process that — just like the muscles in our bodies — will atrophy if unused. So, when the government scares us into the disuse of freedom, we have only ourselves to blame when Big Brother comes calling. And when he does come, on his face there will be no smile.
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